THE RECALL OF JUDICIAL DECISIONS '

N°

CLARENCE D. ASHLEY

Dean of the Law School of New York University

I

O reasonable, thoughtful man would attempt to sustain the proposition for the recall of judicial decisions in its widest sense. Judicial decisions may occur in litigation between parties, and the title does not necessarily exclude jury trials. Of course no one really desires to have a recall which shall apply to such cases. We have recently had a murder trial, and the jury has reached a certain conclusion. There is an appeal to the court of appeals. Suppose we exclude the verdict of the jury, and confine the question to the decision of the court. Do we mean that in case the court decides for reversal there should be an appeal to popular vote? Of course such an idea is absurd. Yet many suppose the proposition to be that the people shall pass on any judicial decision, whether arising in individual cases or in those concerning governmental and general public interest. In the first place, if we limit the proposal to cases of public interest it becomes difficult to draw the line between such questions and those concerning the individual. A man tried for murder is personally much concerned, and so is the public. When it concerns the police, the government also is interested. These trials, then, are of public inter

Very few will attempt to draw the line here, and the best thinkers have wisely limited the proposal to some specific topic. One prominent writer says that he would limit the recall to cases of due process of law. What is meant by that term? What does the constitution mean?

Some lawyers may have a definite answer for this question. Personally I have not, and I have not met one who has. In a special instance you may say that certain action deprives the defendant of due process and is forbidden by the constitution, but can you say generally how "due process" should be defined? Do you mean that the

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

courts are to have power to determine whether in a given case the question of due process has arisen or not, and whether the recall is applicable to the case? Surely it is not intended to leave the determination of this question to the courts. That would negative the whole proposition. And who is to decide if the courts do not? Suppose that in some way a judicial decision is about to be submitted to the people for review, and some one wishes to enjoin this submission on the theory that this is not a proper case for the exercise of the recall, in that it does not involve the question of due process-there seems to be no tribunal to decide the question. Even though one court holds an act unconstitutional on the ground that there has not been due process of law, another court may find that the question of constitutionality does not arise.

Dean Lewis, very wisely it seems to me, regards the question as limited to amendments of the constitution. We often imagine that the constitution is at fault, when as a matter of fact the difficulty is with a decision or the framing of a bill. Recently the court of appeals of New York reversed a case on the ground that a certain statute was unconstitutional. A great Ideal of criticism was leveled at the decision. Another bill was drawn the following year which avoided the defects criticized by the court. It carried out every object that the original draftsman had in view, and also complied with the requirements of the constitution. No constitutional amendment was needed, but merely intelligence and skill on the part of the draftsman. Again, it was said the income tax was improperly held to be unconstitutional. The supreme court for many years held that an income-tax law was constitutional, but now a decision says that it is not. The fault is not with the constitution, and the original view held by the court for years may sometime be reaffirmed, and the desired result reached without any amendment. My belief is that the federal constitution owes its strength mainly to the fact that it is general and does not attempt particulars. It lays down general rules of conduct and then leaves the matter to Congress to work out in detail. From this characteristic comes its adaptability to changing conditions. Its provisions are fundamental.

If you find that a bill is incorrectly drawn there can be no quicker process than to have it redrawn and submitted the next year. There seems to be no sound objection to such a course. We must educate the draftsmen of our bills, the thinkers among the public, and mainly our lawyers. That is why the present public discussions may be objectionable. They distract our attention from the real points of danger. I believe that many of our rules of law are wrong. I think we are living under a system adapted in some respects to a civilization existing three hundred years ago. It seems to me that some sweeping changes might well be made. Thus we might abolish our rules of evidence, which are simply rules of exclusion. So, too, we could modify the subject of contract, and, for example, do away with what seems to be the unnecessary and harmful doctrine of consideration. I would change many other branches of our law. Thus we know that our criminal procedure is at fault and that there are many technicalities which allow rascals to escape. There is a vast amount of traditional reverence for what was quite proper four or five hundred years ago, but is not so now. We know that many sound decisions shock common sense. Do not complain of these things, but get them changed by the legislature.

Our study should be mainly directed towards a solution of these difficult questions. Once bring our law in accord with modern civilization and many of our troubles will cease. Let us devote ourselves to a study of existing conditions, and determine how best we can educate our people and lawyers, so that these problems may be scientifically and carefully worked out. We have a disease; we do not want quack medicines, such as are often suggested for the evils that exist. If we go ahead trying all the various remedies, the result probably will be that the situation will become far worse than it was before. We should become more patient. I do not believe that any thoughtful man would really want the restraints upon our impulses taken away. We speak of the people-we generally mean "other people" when we say "the people "-as acting thoughtlessly, but the educated man is just as likely to be carried away by the emotions of the moment; anybody may feel the madness of the mob.

Therefore we all need checks. What these should be is a question requiring thought, but I believe this entire present-day movement arises, not necessarily because the people are dissatisfied with the power of the courts, not necessarily because they believe that the English system without written constitution is best for our people, but because they justly believe that there is something wrong. We should devote our energies to seeing what is the real evil.

We say the people in the long run are right, and that is so; but we do not mean that they are necessarily right when they are carried away by excitement. No intelligent man wants a decision to rest on such a foundation. We must protect ourselves against this result, but we should not be so conservative as to prevent any reformation. Let us bring about the desired changes in an orderly, sound, scientific manner. This is not an easy thing to do, and requires much thought. It demands profound study, and able, experienced, thoroughly trained lawyers should give their earnest thoughts to the task, thus saving the people and our profession, for the good of the people depends on keeping our profession sound.

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A

THE DEVELOPMENT OF AMERICAN

CONSTITUTIONAL LAW1

MUNROE SMITH

Professor of Comparative Jurisprudence, Columbia University

MERICAN public law is peculiar, if not unique, in the extent to which the powers of our representative legislatures are restricted by written constitutions. Many of the existing restrictions are required by our federal form of government. The fact that the field of legislative action is divided between the federal Congress and the state legislatures has compelled us to limit, in one way or in another, the powers of both, either by indicating what they may do or by stating what they may not do. There are, however, other restrictions. that are not required by the federal form of government. Our federal and state constitutions contain special prohibitions designed to prevent the misuse of legislative power. The most important of these special prohibitions are those which are designed to protect personal liberty and private property and to maintain a formal legal equality.

Natural Rights

These special prohibitions, introduced in our earliest and repeated in our latest constitutions, embody principles which had slowly taken form, in Europe, during a period of more than two thousand years. The interests which they protect had come to be known as "natural rights," and these natural rights were regarded as part of a body of "natural law." To this natural law many European theorists, from the period of the Stoics to the times of Locke and Rousseau, had ascribed a transcendent authority; and some of them had claimed that laws established by human authority which were not in harmony with natural law were not, properly speaking, entitled to the name or to the force of law. In those instances, however, in which 'Read at the meeting of the Academy of Political Science, October 26, 1912.