asserted that judicial recall might become advisable, now advocates recall of judicial decisions. Two recent critics of our judicial system, Mr. Gilbert E. Roe and Mr. William L. Ransom, differ so radically that the arguments of one may well be set off against those of the other. In his interesting book entitled Our Judicial Oligarchy, Mr. Roe regards judicial recall as the remedy to prevent the courts from usurping powers which according to him they do not possess. Mr. Ransom, on the other hand, while equally alarmed at what he conceives to be judicial usurpation, invokes the remedy of recall of judicial decisions. No one has more incisively refuted judicial recall than has Mr. Ransom, and no one has better shown the fallacy of the recall of judicial decisions than has Mr. Roe.

Of judicial recall Mr. Ransom says:

If a judge incorrectly gauges "the preponderant opinion" as to the social necessity for a particular law, why remove him? Why not let the people vote directly to decide what the majority opinion is? If a judge is dishonest, impeach him; if he is incompetent, remove him by complaint before the legislature or refuse him re-election, but it does not seem quite fair to require him to take the final guess as to what the "prevailing morality" and the "preponderant opinion" of a state really is, and then chop off his judicial head if he "guesses" or "calculates" wrong.

For Mr. Ransom's specific Mr. Roe, on the contrary, has the scan test respect. He says:

The recall of judges is to be carefully distinguished from another idea, which is supported by some men of prominence, and which has come to be described as the "recall of judicial decisions." The former may be applied without materially departing from our constitutional form of government; the latter is absolutely destructive of the constitution. The recall of judges merely means that where a judge has shown from any cause that he is not discharging the functions of the judicial office in fundamental and important matters as the people desire, he will be discharged and a new judge possessing the necessary technical qualifications selected in his place. The recall of judicial decisions means that the wholly untrained layman shall undertake to do, personally, the highly specialized and technical work of a judge." The great vice in this idea, however, is that it would be used as a means of amending the constitution by a majority vote. It would soon come about that laws would be passed, simply for the purpose of having them declared unconstitutional, and then by a popular vote overturning the decision of the court, and in that respect amend the constitution. The constitution, therefore, would be immediately reduced to the level of a statute, since any portion of it could be amended, or repealed, at any time by a mere majority of the popular vote. While there is little likelihood of this idea finding a permanent place in the minds of the people, that anyone should be found who seriously advocates this idea is significant of the extent to which the dissatisfaction with the courts has gone, and ought to show the necessity of reforming the courts, along lines less revolutionary.

Mr. Ransom has Colonel Roosevelt on his side. Colonel Roosevelt has written. an introduction to Mr. Ransom's book in which he declares that the people ought to have the power to decide for themselves in the last resort what legislation is necessary in exercising the "police" powers, or "general-welfare" powers, so as to give expression to the general morality and the general or common opinion of what is right and proper, and he is careful to say that he is advocating a system which "will obviate the need of such a drastic measure as the recall." What Colonel Roosevelt seems to overlook is that the people to-day enjoy ample power to change their constitutions so as to secure whatever legislation they may desire in the interest of the public welfare.

Thus those who think judges usurpers and oligarchs are divided into two hostile bands. One would introduce judicial recall as the remedy, the other would have the people recall the judicial decision by popular vote, and each stigmatizes the other's panacea as in the last degree dangerous and unwise.

Surely after all the discussion upon this subject, argument can hardly be needed to show the unwisdom of judicial recall. As I view it, the proposal is based upon two fallacies:

First, it is declared that the judiciary has transcended its functions in passing upon the constitutionality of legislation, and that the judiciary is the undemocratic and unprogressive branch of the government. These things are asserted as to the judiciary not only of the nation but of the several states; yet in the majority of the states the judges of the higher courts are elected by popular vote, and, in many instances for short terms.

Second, it is held that the courts, instead of attempting to follow the constitution which they have sworn to support and to which every statute should conform, ought, on the contrary, to uphold a law in conflict with the constitution, if that law expresses the popular will, thus substituting the popular will, or as it has been called, the "manifest and express will of the people" for the constitution as their guide in certain classes of cases-this class being cases

affecting the social conditions of the whole or part of the community. According to this view, it is not the constitution but the so-called "popular will" that should be regarded as the law of the land.

As I read history the courts have not usurped the power to declare legislation unconstitutional. To say that the judiciary is the unprogressive branch of the government is merely another way of saying that it is the business of the judges not to make law but to declare it, and in this sense the judiciary is the most conservative branch of the government. The courts say what the law is, not what they think it should be, and as constitutions are in theory at least easily amendable, the law can readily be so modified by amendment as to express the most enlightened public sentiment. The public will be presumably expressed in the constitution. The constitution must remain the supreme law until the people see fit to change it, and certainly in the states the power of amendment of the constitution is easily available. In New York state the constitution is, if anything, too readily amendable. The constitution thus represents the "popular will' for the time being, and to attempt to substitute something else as an expression of the popular will by an unconstitutional method is in reality to subvert the popular will.

The recall would inevitably fail. If I wished to pack the bench of this state with the tools of bosses, or the instruments of the great, powerful and wealthy interests that too often dominate legislatures and courts, I would strongly advocate judicial recall. Unscrupulous combinations with large funds at their command could use this power for the removal of the incorruptible judge. It would be a weapon that could readily be turned against the people in behalf of special interests, and nothing could be more dangerous to the popular welfare.

Recall is a species of punishment; it implies dissatisfaction. To my mind there is something inherently wrong in punishing a judge for the expression of an honest and intelligent opinion. I can understand punishment when a person does wrong, but to punish one who with ability is presenting his own best convictions, is, to my mind, an

utter absurdity. The bench should be composed of lawyers who express' their convictions, not mere popular instruments. The recall was applied by James II of England, when he dismissed the Chief Justice of the Common Pleas and his associates, because they were unwilling to give a judgment that accorded with the royal will and not with the law. Jones, the Chief Justice, had been abject, even servile, but when told by the king that he must give up either his opinion or his place, answered: "For my place I care little; I am old and worn out in the service of the Crown, but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man could give."-“I am determined," said the king, "to have twelve judges who shall be all of my mind as to this matter." "Your Majesty," answered Jones, "may find twelve judges of your mind but hardly twelve lawyers." The king dismissed him and his associates. This is what would happen with judicial recall in force. Judges would seek to know the popular will and to follow it, which would be subversive of jurisprudence, and in turn of the rights and liberties of the people themselves.

Assuming that there are errors in the present administration of justice which need to be corrected, assuming that judges have encroached upon the legislative branch of the government and constituted themselves a species of upper house to veto legislation by substituting their opinion for legislative opinion, the remedy does not lie in the recall of judges or in recall of their decisions. On the contrary, the remedy is far simpler, more efficacious, more wholesome, less subversive and revolutionary.

In the first place, compel judges to return to the sound, old-fashioned notion that no law may be held unconstitutional unless it clearly transcends legislative power. It is a travesty to assert a law plainly and palpably unconstitutional which five judges out of a bench of nine consider unconstitutional, while the remaining four believe it within legislative authority. A statute which three judges out of seven or four judges out of nine deem constitutional is not plainly and palpably unconstitutional, and no court by any

vain show of reasoning can make it appear to be so. Whenever there is doubt of the validity of a statute, the courts, as the late Mr. Justice Harlan of the Supreme Court admirably said, "must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation."

If necessary, I would favor an amendment to every constitution depriving the judges of power to nullify laws by a majority vote. A constitutional provision might be thus formulated: Judges shall have power to declare statutes unconstitutional only when they plainly violate an express provision of the constitution and then only by unanimous or greatly preponderating vote.

Second, I would so amend the national judiciary law, or if necessary the federal constitution, as to permit a review in the highest tribunal of the nation of every statute involving the due-process-of-law clause, whether the statute was upheld or abrogated by the state court. The guarantee of due process of law is the same in words-in any event it is identical in meaning-in the national and the various state constitutions. Had the judiciary act permitted, the Ives case, which according to the New York court of appeals offended against this clause of the state and the national constitution, would have been reviewed in the United States Supreme Court. With one final tribunal to determine whether any statute, state or federal, conflicts with the due-process clause, there will be evolved a clear definition of the clause; there will also be harmony in decisions. Furthermore, in every case involving this provision, attention will be centered upon the court that possesses this final authority. The guarantee of due process of law may have been distorted and extended far beyond its original meaning, as some claim; yet, on the other hand, the words of a constitution must be fluid, and no meaning once assigned can control the signification of the words if new circumstances give them a new meaning. Every interest which regards its property as unjustly affected, or perhaps confiscated, by a statute the purpose of which is social improvement, has a right to be heard, but all such statutes should be brought to final test before the Supreme Court of the United States. That court is to-day more