"LEGALIZED TERRORISM"

...It is a government of the whole people by a majority of the whole people under such rules and checks as will secure a wise, just and beneficial government for all the people...

...Think of the opportunity such a system would give the unscrupulous political bosses in control, as they have been in control not only of conventions but elections...

...Hence arises the necessity for a constitution by which the will of the majority shall be permitted to guide the course of the government only under controlling checks that experience has shown to be necessary to secure for the minority its share of the benefit to the whole people that a popular government is established to bestow...

...Well, then," replied Pat, "I can't...

...No honest, clearheaded man, however great a lover of popular government, can deny that the unbridled expression of the majority of a community converted hastily into law or action would sometimes make a government tyrannical and cruel...

...What I have said has been to little purpose if it has not shown that judges to fulfill functions properly in our popular government must be more independent than in any other form of government, and that need of independence is greatest where the individual is one litigant, and the state, guided by the successful and governing majority, is the other...

...Chicago Tribune...

...But ordinarily they do not all agree, and the maxim is interpreted to mean that you can always trust a majority of the people...

...But such a view did not obtain with our hard-headed, courageous and far-sighted statesmen and judges, and it was soon settled that it was the duty of the judges in cases properly arising before them to apply the law and so to declare what was the law and that if what purported to be statutory law was at variance with the fundamental law, i. e., the constitution, the seeming statute was not law at all, was not binding on the courts, the individuals, or any branch of the government, and that it was the duty of the judges so to decide...

...PROVED HIS EYESIGHT BAD An Irishman was once serving in a regiment in India...

...If a statute or ordinance affecting a cause before them is not lawfully enacted, because it violated the constitution adopted by the people, then they must ignore the statute and decide the question as if the statute had never been passed...

...If this question is between .individuals they will follow the statute, or the unwritten law if no statute applies, and they take the unwritten law growing out of tradition and custom from previous judicial decisions...

...It' is to be their government, and while the power of congress to withheld or grant statehood is absolute, the people about to constitute a state should generally know better the kind of government and constitution suited to their need than congress or the executive . But when such a constitution contains something so destructive of free government as the judicial recall it should be disapproved...

...and not by all of these, but by a majority of them only...

...They are not popular representatives...

...On the contrary, to fill their office properly, they must be independent...

...Following is his message in part: "This provision of the Arizona constitution in its application to county and state judges, seems to me pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of a popular majority and, therefore, to be so injurious to the cause of free government that I must disapprove a constitution containing it...

...While, therefore, there have been elected judges who have bowed before unjust popular perjudice, or who have yielded to the power of political bosses in their decisions, I am convinced that these are exceptional, and that, on the whole, elected judges have made a great American judiciary...

...This power, conferred on the judiciary in our form of government is unique in the history of governments and its operation has attracted and deserved the admiration and condemnation of the world...

...A popular government is not a government of a majority, by a majority, for a majority of the people...

...This power is a judicial power, imposed by the people on the judges by the written constitution...

...Again judicial recall is advocated on the ground that it will bring the judges more into sympathy with the popular will and the progress of ideas among the people...

...But even in such cases, judges are not removed from the people's influence...

...In early days some argued that the obligations of the constitution operated directly on the conscience of the legislature and only in that manner that it was to be conclusively presumed that whatever was done by the legislature was constitutional...

...Accordingly he went to the doctor and told him his eyesight was bad...

...It is said that now judges are out of touch with the movement toward a wider democracy and a greater control of governmental agencies in the interest and for the benefit of the people...

...This is not invariably true: and every limitation imposed by the people upon the power of the majority in their constitutions is an admission that it is not always true...

...Of course, a mere difference of opinion as to the wisdom of details in a state constitution ought not to lead me to set up my opinion against that of the people of the territory...

...Pat looked about the room and at last said: "Well, doctor, you see that nail on the wall...

...In a proper sense, judges are servants of the people...

...In a popular government the laws are made by the people—not by all the people, but by those supposed and declared to be competent for the purpose, as males over 21 years of age...

...The doctor looked at him a while and then said: "How can you prove to me that your eyesight is bad...

...It gives to our judiciary a position higher, stronger, and more responsible than that of the judiciary of any other country and more effectually secures adherence to the fundamental will of the people...

...Judges are men, intelligent, sympathetic men, patriotic men, and in those fields of the law in which the personal equation unavoidably plays a part, there will be found a response to sober popular opinion as it changes to meet the exigency of social, political and economic changes...

...They must decide every question which comes before them, according to law and justice...

...Now, as the government is for all the people, and not solely for a majority of them, the majority in exercising control either directly or through its .agents is bound to exercise the power for the benefit of the minority as well as the majority...

...In order to maintain the rights of the minority and the individual and to preserve our constitutional balance, we must have judges with courage to decide against the majority when justice and law require...

...Yes," replied the doctor...

...that is they are doing work which must be done for the government and in the interest of all the people, but it is no work in the doing of which they are to follow the will of the majority except as that is embodied in statutes lawfully enacted according to constitutional limitations...

...The righteous and just course for a judge to pursue is ordinarily fixed by statute or clear principles of law and the cases in which his judgment may be affected by his political, economical, or social views are infrequent...

...His objection is based on a fear of "the tyranny of popular majority...

...The judge is treated as the instrument and servant of a majority of the people and subject to their momentary will, not after a long term in which his qualities as a judge and his character as a man have been subjected to a test of all the varieties of judicial work and duty...

...Surround the judiciary with all the safeguards possible, create judges by appointment, make their tenure for life, forbid diminution of salary during their term and still it is impossible to prevent the influence of popular opinion from coloring judgment in the long run...

...On the instant of an unpopular ruling while the spirit of protest has not had time to cool and while even an appeal may be pending, from his ruling in which he may be sustained, he is to be haled before the electorate as a tribunal, with no judicial hearing, evidence or defense, and thrown out of office, and disgraced for life because he has failed, in a single decision, it may be, to satisfy the popular demand...

...It is said you can always trust the people to do justice...

...Not liking the climate, Pat tried to evolve a trick by which he could get home...

...The recall is devised to encourage quick action and to lead the people to strike while the iron is hot...

...Indeed this should be so...

...If that means all the people and they all agree, you can...

...Legalized Terrorism" President Taft denounces the Recall of Judges because he fears "the tyranny of a popular majority" PRESIDENT TAFT'S message vetoing the Arizona-New Mexico statehood bill is given over entirely to a recitation of his objection to the recall of judges...

...We cannot be blind to the fact that often an intelligent and respectable electorate may be so roused on an issue that it will visit with condemnation the decision of a just judge, though exactly in accord with the law governing the case, merely because it affects unfavorably their contest...

...Think of the enormous power for evil given to the sensational, muckraking portion of the press in rousing prejudice against a just judge by false charges and insinuations...

...I must therefore withhold my approval from this resolution if in fact I do not approve it as a matter of governmental policy...

...Controversies over elections, labor troubles, racial or religious issues, issues as to the construction or constitutionality of liquor laws, criminal trials of popular or unpopular defendants, the removal of county seats, suits by individuals to maintain their constitutional rights in obstruction of some more popular improvement—these and many other cases could be cited in which a majority of a district electorate would be tempted by hasty anger to recall a conscientious judge if the opportunity were open all the time...

...No period of delay is interposed for the abatement of popular feeling...

...Could there be a system more ingeniously devised to subject judges to momentary gusts of popular passion than this...

...so as to furnish a proper means of measuring his fitness for continuance in another term...

...But all have recognized that the majority of a people, unrestrained by law, when aroused and without the sobering effect of deliberation and discussion, may do injustice to the minority or to the individual when the selfish interest of the majority prompts...