in his own case, and to forecast the contingencies to which it might apply, knowing that he cannot make a rule which will affect others without its affecting him also. But in deciding whether to recall the decision in favor of a rich man he will not realize that he is making law for himself, nor if the election only validates a particular statute will it perhaps affect him. If the recall is adopted, there will be no settled rule which the majority of voters may not set aside in a given case at pleasure.

Again if the majority can recall a decision and so by a majority vote amend the constitution, where is the protection now afforded minorities and individuals? The very object of the constitution is to restrain the power of the majority and to protect the rights of the individual against its tyranny. This object is defeated if a majority of the voters is given the power to invade these rights at pleasure. It is not necessary to speak of the feelings aroused by differences of religion, or wealth, or the antagonism between labor and capital, though all are very easily aroused. Consider only the effect of race prejudice, today the most dangerous influence at work in our midst. Only a few years ago I heard an eminent Hebrew in New York say that the lives and property of his race were safe nowhere save in England and the United States. The Dreyfus case was then shaking the government of France, and the expulsion of the Jews from Russia and their treatment in other countries were fresh in men's minds. It is possible that a similar feeling might be raised against them in parts of the United States, for we are of flesh and blood in no way different from other men, and in that case how safe would they be with no constitutional protection? Ten millions of our fellow-citizens, our equals before the law in every respect, are now suffering outrages and indignities of all kinds in every part of the country because their skins are darker than our own. They are denied the right to vote, they are denied in some places the right to live where other citizens may live, their lives are taken without due process of law. The constitution affords them their only protection. Can their rights safely be left to be dealt with as pleases a majority of their fellow-citizens in many states? To ask the question is to answer it.

Lastly we may be sure that while men are men disputes between them will constantly arise, and somehow, by somebody, they must be decided. As civilization has advanced, the old-fashioned ways of

settling those questions by might, by wager of battle, or various ordeals have been abandoned, and instead it is agreed that the best way of settling all controversies is by submitting them to impartial men, who after hearing the parties shall decide what is right. Even in the international field, enlightened men of all nations are agreed that the settlement of questions by the majority on the battlefield must cease, and that such disputes must be adjusted by The Hague tribunal or some like body of trained jurists. It would be absurd to propose that an election should be held in which the contending nations should vote and a majority decide, for that would make Russia supreme in Europe and the smaller nations would be placed at the mercy of their larger neighbors. What is so manifestly absurd as a method of settling questions between nations is hardly less so if applied to disputes between individuals. It is clear that in an international controversy each voter would stand by his own country, and therefore an election would be a farce. Is it not equally clear that if the constitutional or other question involved in a decision were of such popular interest as to suggest the recall, the voters in deciding it would stand by their own class, their own color, their own party, their own locality, just as Russians would stand by Russia and Frenchmen by France? That if the election for example turned on a decision as to the respective rights of labor and capital, or any like question on which feeling was strongly aroused, the result would be influenced by prejudice and sympathy, and that the feeling not the reason of the voters would determine the result? So far from having their rights fixed by an impartial tribunal, the parties would be sent from that tribunal to fight out their differences at the polls, and the strong side, not necessarily by any means the right side, would prevail. It is not right, but might which would decide the contest, and thus in cases of the greatest importance to the public our whole method of deciding controversies by disinterested men would be abandoned, and instead, the result of a contest between the parties, in which the most numerous would win, would be registered as law. We struggle to get juries in all important cases made up of men who can have no prejudice or opinion on the questions involved. If the recall prevails the tribunals which make our law will be governed by prejudice. Can anything more inconsistent with the orderly administration of justice or anything more contrary to all civilized procedure be imagined?

In a word we labor to secure wise, courageous and impartial judges trained for their work by years of study and experience to decide the disputes which arise among men, and it is proposed that from the decisions of such men an appeal shall lie to the people, an appeal from knowledge to ignorance, from impartiality to prejudice, from ripened experience to inexperience, from the serene atmosphere of the courtroom to the declamation and passion, the noise and the dust of the hustings.

But it may be said that in a different way the people can accomplish the same result since they can amend the constitution. That is true and I would not take away or fetter this absolute power. But its exercise is now regulated in such a manner as to insure deliberation, and as far as possible to present a general rule and not a particular case for consideration. Even in courts "hard cases make shipwreck of the law," and this danger would be increased a hundred fold if the people were given power to decide in each case whether or not to uphold the constitution. There is power enough now, and it is properly guarded. Let well alone.

Nor is the process of amendment slow or difficult. Between 1880 and 1911 the people of Massachusetts have adopted twelve amendments to the constitution of the state. This necessitates the adoption of the amendment by two successive legislatures and its ratification by vote of the people, but in no case has the process occupied two years. It may be doubted whether amendment by the recall of decisions would be more expeditious. It certainly ought not to be, and if other states have more cumbrous methods, they can adopt the Massachusetts rule. To be sure in Massachusetts elections are annual, while in most states the legislatures are chosen biennially. The annual session was abandoned because the people did not like to have the legislature so often in session, in fact did not trust their representatives thoroughly. The biennial session may delay the process, but it is strange that communities which in this way have shown their distrust of legislative action should now assume that if a law which such a legislature has passed is held unconstitutional, the people's will is defeated. Is the legislature, that cannot be trusted to meet every year lest it abuse its power, so infallible an interpreter of the people's will that our whole constitutional system must be changed and our constitution in fact abolished in order to give its laws more immediate effect? If skilful draftsmen cannot

write an amendment to the constitution which satisfies them, will the constitution be amended better by the loose language of a statute drawn as most of our statutes are? Such will not be the judgment of intelligent men.

Senator Root has stated the question admirably in the following words:

We must choose between having prescribed rules of right conduct, binding in every case so long as they exist, even though there may be occasional inconvenience through their restraint upon our freedom of action, and having no rules at all to prevent us from doing in every case whatever we wish to do at the time. A sovereign people which declares that all men have certain inalienable rights, and imposes upon itself the great impersonal rules of conduct deemed necessary for the preservation of those rights, and at the same time declares that it will disregard those rules whenever in any particular case it is the wish of a majority of its voters to do so, establishes as complete a contradiction to the fundamental principles of our government as it is possible to conceive. It abandons absolutely the conception of a justice which is above majorities, of a right in the weak which the strong are bound to respect.

In a word it abandons our whole theory of constitutional government. It is difficult to believe that the people of the United States are ready yet to adopt this suicidal policy.

CONSTITUTIONAL GROWTH THROUGH RECALL OF

DECISIONS

BY DONALD R. RICHBERG,

Director, Legislative Reference Bureau, Progressive Party, New York City.

Seldom has a political theory received so little unprejudiced consideration as the "recall of decisions." Bench and bar and the lay public have confused the idea with the recall of judges; have repeated catch phrases, such as-"the appeal from the umpire to the bleachers;" and largely overlooked the substance of the proposalan improved method only, for the exercise of a fundamental power reserved to the people, to make, to amend, and to interpret their constitutions.

The lack of a clear understanding of the proposal, rather than any vicious intention to misrepresent, is responsible for many unfair arguments against it. Lawyers, who should be better informed, repeat the stale misstatements of their professional brethren; and laymen, who have acquired a wholesome distrust of the advice of the bar, may be thereby unduly prejudiced in favor of the proposition.

It is possible that a presentation of the idea in words of one syllable may serve a double purpose in helping to clarify the real issue both for members of the bar and for the interested public. In order to simplify the exposition so far as possible, the present consideration will deal only with the recall of a limited class of "police power" decisions.

Why and When Necessary

In a certain class of important cases there may be, under the constitution of every state in the Union, a conflict of authority between the legislature and the courts.

Under the constitution the legislature of a state claims the power to pass a certain law—a law not prohibited by any definite words in the constitution.

Under the constitution the supreme court of the state claims the power to declare that particular law void.

Who is to decide between these two claims of power?