tures. That is a very singular constitutional development, without parallel in other countries.

Another marked feature is the expansion of judicial authority, It cannot be understood unless we consider the moral basis as well as the legal basis. An abnormal extension of jurisdiction has been forced upon the courts through stress of necessity. Consider such a situation as that which existed in Montana after the legislature adjourned in 1907. The enactments of the session were so full of mistakes that the official publication made by the secretary of state contained the following notice: "The within are exact copies of the enrolled laws as the same reached this office, and neither this office nor the printer employed in the work is responsible for spelling or punctuation." One law, presumably meant to prevent the sale of diseased meat, imposed a severe penalty on the sale of "deceased" meat. Compliance with the law as it stood would have required butchers to supply their customers with live cattle. This is an instance of the sort of legislation that compels American judges to do what the judges of no other civilized country have to do, namely, go behind the language of the act to consider the motives and intentions of the legislature, the practical result being to substitute judicial discretion for legislative action. It is true that the law-making power has been virtually transferred from the legislature to the courts, but this result is to be imputed to legislative incapacity rather than to judicial arrogance. Those who are inclined to attribute to the federal nature of our government the powers over law-making exercised by American judges should consider the fact that no such tendency has been developed in Switzerland or Germany. Some tendencies appeared in Germany in that direction, and Brinton Coxe, in his treatise entitled " Judicial Power and Unconstitutional Legislation" collected a number of cases. But the courts refrained from courses that American courts have followed, not so much because of a difference in the legal situation as because of differences in the moral situation. When statutes are known to be a mature and circumspect expression of public opinion, judges will hesitate to set up a contrary opinion of their own, and indeed the principle has been laid down in the courts of Germany

that a constitutional provision is to be understood as a rule for the legislative power to interpret. No such attitude of serious opinion could exist in regard to the legislative power in this country, as its activities are too crude and irresponsible to command respect. The abnormal exaltation of judicial authority in America is correlated with an abnormal degradation of legislative authority. Rectify the legislative situation and the judicial situation will settle itself.

Efforts to obtain good government by constitutional restraint have about reached their limit, and the political philosophy from which they issued is becoming obsolete. American constitutions started at a time when there was a habit of regarding government as a thing distinct and apart from the people, so that popular liberty implied limitation of the sphere of government. Now government is coming to be regarded simply as an institutional embodiment of the will of the people. It is their agency, existing for their service, so that impairment of its power is an abatement of the sovereignty of the people. The people are now demanding a revision of the system of government, not to put more checks on the government but to take possession of the government itself. Questions of fundamental organization are now engaging consideration. This disposition affrights conservative sentiment, but while the political mythology usually invoked in opposition to reform does not deserve any respect, the anxiety is not baseless. It is not true that the system against which radical reformers are in revolt expresses the wisdom of the Fathers, but it is true that organic change is a dangerous process. History tells us that the making over of constitutions is a process that is apt to draw blood. The French Revolution has not lost its importance as a warning. But by using one's judgment instead of one's imagination to reach conclusions I think it will appear that risks attending the renovation of our state constitutions are closely limited by the essentially municipal nature of state authority. No matter what blunders may take place they will result in public loss and inconvenience rather than public disorder. It will be a dry revolution and not a wet revolution even at the worst.

The influences making for a reorganization of state govern

ment are now so strong that a change of type is not likely to be deferred for many years. The eighteenth-century doctrine of the separation of powers was at one time as generally applied in city constitutions as it still is in state constitutions. It has been overthrown by the introduction of the commission plan of government, and the general improvement of municipal government ensuing from the spread of the new model is affecting public opinion as regards state government. It would be still more influential were it not that the body in which the commission plan connects the executive and legislative powers is too small for state use. But for difficulty on that point attempts might have been made before now to adopt the commission plan in state government. The way in which the commission plan has directed public attention to the advantages of direct connection between the executive and legislative powers will be fruitful in constitutional results.

The most significant indication of the tendency of the times is, I think, the new constitution which the Oregon reformers are endeavoring to introduce by popular initiative. In essence, it proposes that the governor shall be the general manager of the public business, meeting with the representative assembly as with a board of directors. He will appoint his cabinet, he will have the right to prepare the budget and propose his measures, and if his measures are rejected he will have the privilege of submitting them to the direct vote of the people. In acquiring these powers, he will no longer have the veto power. His duty will be to digest and propose measures, not to forbid what the legislature may have done. His power becomes. positive instead of negative.

Not merely in Oregon, but even here in New York the trend of opinion is in the same general direction. It hardly seems possible to do anything more to increase the governor's power of negative action. The next step in order is to give him power of positive action; that is to say, instead of a power of veto he should have a power of initiative. Just such a constitutional change has already been proposed by Henry L. Stimson, at one time Republican party candidate for governor of New York and at the present time Secretary of War in

President Taft's cabinet. In a speech at Cleveland, on Jan. 28, 1911, he said of the governor:

Give him the same power to select and control his cabinet and the heads of his departments which is possessed by the President of the United States, especially with an absolute and unconditional power of removal. The same power should be carried through all of the executive departments through which is administered the regulative control of our public service corporations and other public utilities. Give him the undisputed right, not only to suggest, but to frame and introduce his own legislative measures, giving to such measures a right of precedence on the legislative calendar. Do away, for instance, with the spectacle that we have seen too often in New York, of measures desired by the governor held up apparently by the action of the clerk of the assembly. If the governor's power over legislation under such conditions should prove to be great, it could always be checked by the use of an optional popular referendum.

The short-ballot movement makes in the same direction. How are you going to shorten the ballot except by treating the governor as a general manager, filling subordinate positions by appointment, subject to responsibility for results, through close connection with the representative assembly? It is a familiar business principle that discretion and responsibility go together. In acquiring the power to propose and explain his measures directly to the legislature, and to bring them to determination, it will no longer be necessary for him to use official patronage as a fund with which to bribe the legislature to consider the public business, and it will be politically inconvenient to make appointments on other grounds than administrative efficiency.

The ideas and influences that I have sketched are yet to receive institutional embodiment, but that is simply a question of time. If an efficient type of state government appears anywhere it will spread everywhere. Certainly the present situation cannot endure. Its evils are not irremediable. The forces of progress will find a way out. I am sufficiently optimistic to believe that a reorganization of state authority is about to begin that will give the American people that which they have never had-institutions of efficient government.

T

THE RECALL OF JUDICIAL DECISIONS

WILLIAM DRAPER LEWIS

Dean of the Law School of the University of Pennsylvania

HE subject which I have been asked to discuss is usually called, though I think miscalled, "the recall of judicial decisions." It is proposed that, when an act passed by a state legislature shall have been declared contrary to the constitution, if a given fraction of the electorate shall petition to have the act referred to popular vote, it shall be so referred, and the people after a period for deliberation shall be given an opportunity to vote directly on it. If a majority of the people vote in favor of the act, it shall thereafter become law. As actually advanced in national and state Progressive platforms, the proposition is not only limited to decisions of state courts interpreting provisions in state constitutions, but is further limited to acts passed under the police power. Thus, the national platform of the Progressive party pledges that party to provide "that when an act passed under the police power of the state is held unconstitutional under the state constitutions by the courts, the people, after an ample interval for deliberation, shall have an opportunity to vote on the question whether they desire the act to become a law notwithstanding such decision."

It is, therefore, clear that those of us who advocate this new method of dealing with certain constitutional questions believe that its real usefulness is largely, if not wholly, confined to the situation which arises when an act passed under the police power of the state is declared contrary to the state constitution. The police power of the state is the general power to pass laws which direct the conduct of the individual or private associations of individuals, which says that we must do this or that. It therefore includes practically every law except those which relate to the conduct of public officials or the organization and the oper

1 Read at the meeting of the Academy of Political Science, October 26, 1912.