Let us next ask what the judges do when they decide an act unconstitutional. They do not issue a decree when the law is passed setting it aside and staying its execution. Unless the question is raised in some litigation they express no opinion, but when a case comes before them in which one party claims a right under some statute, and the other says that the statute was one which the legislature had no power to pass, they deal with the issue thus raised. It being conceded, as it must be, that the legislature of the day has no power save that which the people gave it by the constitution, the question before the court is, "What is the people's will?" Their will as expressed in the constitution must prevail for that is the fundamental law, and the court in interpreting the constitution and applying it to the statute, so far from defeating the people's will, is endeavoring to carry it out. In so doing it is the court, not the legislature, which best represents the people.

I cannot state the proposition as well as Chief Justice Marshall stated it in Marbury vs. Madison:

If two laws conflict with each other the courts must decide on the operation of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. Those,

then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void is, yet, in practice, completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that these limits may be passed at pleasure.

It is always certain that the losing party and some others will quarrel with the decision, and it is possible that the interpretation which the court gives to the words of the constitution may not be approved by the majority of the people. They may say, "If that is what the constitution means, we do not like it." Is the court an uncontrollable monster from whose decree there is no relief? On the contrary the people have only to change the constitution by amend

ment, as they have done several times recently with the Constitution of the United States, and are constantly doing with the constitutions of the states. The people can wipe out the whole constitution, can adopt socialism or even anarchy, can obliterate all rights of property, all freedom of speech if they wish, and the courts are of all men the least able to prevent it. The courts tell the people what their law means, and the people if they are dissatisfied have full power to make a new law which will satisfy them better.

Let us take another step and examine Jefferson's theory that each department of government may construe the constitution for itself, and its decision be binding. Does anyone really think that the quiet and generally elderly gentlemen who compose our courts, and who have no power to enforce their decrees save as the executive aids them, are more dangerous Frankensteins than an uncontrolled President, or a lawless Congress would be? Are three Frankensteins safer than one? The judiciary is notoriously the weakest department of our government. Its power comes from its wisdom. and its character, and is purely moral. Not so with the executive and the legislative branches which control the purse and the sword.

Questions of constitutional interpretation must arise between Congress and the President, as in the time of Andrew Johnson. More conflicts may come in the future, and if each can interpret the Constitution finally, there is no way out of the conflict. It is not safe to let a headstrong president define his own powers at pleasure, or a legislative majority in times of popular excitement legislate at will. Some one must decide such questions, and the only possible arbitrators are the courts. If they are shorn of their power, there is no constitutional limit upon executive or legislative power-in short there is no constitution. If they make law which the people do not like, the people can change it after due deliberation. The ultimate power is with them. This is democracy pure and simple.

Jefferson's three Frankensteins, or even one of them if the President is the one, may well mean civil war as might have been the case when the Hayes-Tilden controversy arose. The Frankenstein that can send the troops and ships of the United States to prevent Colombia from asserting its rights in its own territory, or can send soldiers to quell a riot in any city, is a far more dangerous Frankenstein than any court in the United States. Shall we, with this in view, abandon the ways which we and our fathers before us have trodden so long in safety?

But it is conceded by the advocates of the recall that the people have the power to amend the constitution and so change any interpretation of its provisions by the courts, but they say it is a cumbrous process, that it is slow in its operation, that its outcome is uncertain, and that it is difficult to draw an amendment which is entirely satisfactory, a difficulty encountered in New York in the effort to change the constitution so as to impose on employers a liability for accidents to employees.

If the process is slow, it is because the founders of this government wisely decided that it should not be too easy for a popular majority to change the fundamental law which regulates the powers of the governor and the rights of the governed. There is no one who has not had occasion to realize the wisdom of "sleeping on" a proposition before acting. Our system makes the people "sleep on" a proposed amendment before adopting it, and this spells safety. There are few if any constitutional changes which cannot safely wait the sober second thought of the voters, and if in any state the process of amending the constitution is bad, the process itself can be changed by amendment.

It is said that of many amendments proposed only few have been adopted. The fault is not with the process of amendment but with the amendments themselves. There has been no difficulty in carrying amendments which the people wanted. The difficulty has been with those that the people did not want, and that this difficulty exists is an argument in favor of the present method. As for the difficulty in drawing an amendment, what stronger argument can we have against the proposed change? If skilful men with ample time at their disposal cannot express in writing what they mean, is it not clear that their minds are not in accord and that they do not know what they want, or perhaps that they recoil from the amendment when they see it in black and white? If we cannot reduce the law to a written statement, where shall we be left by a popular election recalling a decision, and what will the law then be? It is impossible to foresee the extent of the resulting confusion.

The arguments against the recall of decisions are numerous. In the first place how would the process affect the certainty of the law, which is most important, as was stated at the beginning of this article? Today we find the law in the text of the constitution and the statute. We are aided in its interpretation by the history of

the provisions in question, and by the decisions of eminent and able judges and the precedents which their labors have established, and with these to help him the lawyer who is called upon to advise a client as to his right can with some confidence tell him what they are. If the recall of decisions is adopted he must say, "This in my judgment is the law as the court will lay it down, but after its decision the other side may start an agitation for a recall and no one can tell what the result of a popular election will be." The client will be as much at sea as would be the patient if he found that the remedies prescribed by his doctor were subject to be changed, if the public after hearing various quacks decided by a majority vote that the diagnosis of his doctor was wrong.

Let us pursue the client's difficulties a little further, and suppose he is sued. Shall he settle the claim or not? His lawyer must say that "while in the courts you will win, you must incur the expense of defending yourself there, and afterwards of conducting a popular campaign before you are safe. What that expense, or what the result of the election will be, who can tell?" If it be said that the recall is not to affect the judgment so far as the rights of the parties to the case are concerned, what is the position of the losing party, bound by a judgment which as to the public and all other parties is held by the people to be wrong? There is then one law for the unhappy man who raised the question and incurred the expense, and another law for all his fellow-citizens. Suppose the amount in a case is small but the principle involved affects a great many: must the persons interested form a party and raise a campaign fund to sustain a decision or reverse it at the polls? The imagination fails to grasp all the possibilities and uncertainties of law made in such a way.

It is conceded also that the law should be no respecter of persons. Suppose a constitutional fight is claimed by a Rockefeller in a dispute with some laborer, can we be sure that the people will not decide against Rockefeller's contention because he is rich, and can afford to lose his case? This is the reasoning which juries often use in deciding suits for personal injury, and their logical processes are those of the community at large. Suppose next year a poor man claims the same constitutional right against a rich neighbor, will not the poor man be likely to prevail for the same reason, and then which election makes the constitution? Is one popular election to settle rights for all time, or may it be overruled by the same voters or their descendants at another election?

Again the courts in deciding often leave questions open for future consideration, and it is doubtful how far their decision is intended to go. Will not the same or greater doubts be left by popular elections? Our opponents say that the opinions of the court are "only literature, impressive, helpful, more or less persuasive, but not of themselves law." Yet it must be confessed that they state the rules which the courts will follow in like cases; that they tell us what the law is, and guide us in other cases. What shall take their place when a decision is recalled? Shall we interpret the result by the speeches of irresponsible orators on the stump, or by appeals made in campaign documents? What a vista of hopeless confusion and uncertainty the suggestion opens!

Moreover when the question is presented to the voters whether they wish a particular law to stand although it violates the constitution, they are really asked whether they want to override the constitution in this case. It is only an abuse of terms to call it amending the constitution, for it is not suggested that the provision of the constitution violated in that case is to be treated as absolutely repealed. To illustrate my meaning, let me call attention to the constitutional rule that no man can be deprived of life, liberty or property save by due process of law. When a number of lawyers were trying to frame an amendment to the constitution of New York which should make possible an employer's liability law of an extreme character, and were contemplating their completed work, one said, "This does not seem to me entirely satisfactory." "No wonder," replied another, "what we have done in substance is to make the constitution provide that no man shall be deprived of his property save by due process of law except employers of labor." The story may be true or false, but it is clear that while no one would probably advocate the repeal of the general provision, he might very well support a particular law without recognizing that it violated that provision. Laborers might be willing to deprive their employers of rights which they would insist on preserving for themselves, just as the labor unions object to any combinations of capitalists that may tend to monopolize trade or prevent competition, while they strenuously insist that they shall have the right to form combinations against their employers with the same object.

When the constitution is amended under the present system each voter has a chance to consider how he would like the new rule