Full text of Statements and Speeches of Robert L. Owen : Election and Recall of Federal Judges : Abstract of Speech

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Election and Recall of Federal Judges.
ABSTKACT
.

V

OF

HON. R O B E R T
)

SPEECH

OF

L. 0 ¥ E N g

Monday, July SI, 1911.

[Congressional Record, p. 3687.]

Mr. OWEN. Mr. President, I am moved to offer this bill for
the election and recall of Federal judges, and to discuss it, in
connection with the Arizona constitution.
The people of that State propose the right to elect and recall
all officials, including judges, by a vote of the electorate.
,
A BST RA CT OF ARGUMENT.

n

a

I shall endeavor to show the justification of the right of
election and recall of judges—■
First. By precedents, showing that many States do elect their
judges and that all of the 46 States do have the explicit right
to recall their judges by the legislature, or automatically recall
by a short or fixed tenure of office.
Second. That the election and recall of judges is justified by
sound reason and common sense.
Third. That the recall of judges is justified in a peculiar
sense in this Republic at this time, for the reasons—first, the
Federal courts have unlawfully assumed the right to declare
acts o f Congress unconstitutional; second, have undertaken to
invade the legislative function of Congress by judicial legisla­
tion ; third, have overridden the rights of State laws in a similar
manner, either on the charge that such State laws were uncon­
stitutional or that such State laws were invalid on grounds of
policy; fourth, such courts have become tyrannical by denying
jury trial in contempt cases, inconsiderate in injunction cases,
and so forth, and that the reason of this bad behavior is due to
the fact that the judiciary is not responsible to the people either
by election or recall.
The election and recall of Federal judges would abate the
present jealousy felt by the States against the Federal Govern­
ment and bring into harmonious relation the States and Nation.
I shall examine the argument of judicial infallibility and
answer it.
I shall endeavor to show that the Constitution of the United
States abundantly justifies Congress to follow the example of
the States and provide both the election and the recall of
Federal judges.
I shall endeavor to show that the time has come when the
liberties of the American people require the exercise of this con­
stitutional power, or if it be deemed unconstitutional by Con­
gress, then that Congress should submit an amendment to the
Constitution to provide for this and other relief by establishing
an easy means of amending the Constitution.
T H E ARGUM ENT.

'

*

Mr. President, the bill which I now submit proposes to put
the recall of Federal judges in the hands of the Congress of
the United States, while the Arizona constitution proposes to
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put the recall of .judges in the hands of the electorate of that
State. They are the sovereign power, they are the governing
power, and if the court has a bias against the interest of the
people and the people wish to recall for that purpose that bias
need not be named as a ground for such action. It need not be
mentioned. No reason is necessary to be assigned why the sov­
ereign power of the people of this country should be exercised
in recalling any public servant. It has a right to be exercised
without assigning reasons.
To assign reasons is to discredit the incumbent, while re­
moval without assignment of reasons is the mildest method of
dealing with a public servant whose service is no longer desired.
And self-governing people should govern themselves without
apology or need to assign reasons in the exercise of the right of
self-government. The mere fact that the people do not like a
judge and do not desire him to serve them justifies recall. He
has no function, no public office, or public dignity except as it is
bestowed upon him by the people themselves, yet the Tory argu­
ment is constantly advanced—that judges ought not to be re­
called, that they ought to be independent of the people, that they
ought to have office for life whether their service is acceptable
to the people or not. There is no sound sense and no good reason
in this contention, and it impairs the right o f self-government
and liberties of a free people. Such a policy can only result in
a judicial oligarchy.
THE

T E O rL E

ARE

C O N S E R V A T IV E .

It will be contended by some that the recall of judges might
safely be left to the National Legislature or to the State legis­
latures, but should not be left to the electorate, because the
electorate would not be so conservative in the exercise of the
power to recall a judge as their representatives in the legis­
lature.
The answer to this is that the electorate of an American State
and of any of the American States is abundantly conservative
and moves very slowly, more slowly than their progressive rep­
resentatives would move.
A political party is controlled by caucus and in convention,
and is easily moved by passion or impulse. The people in their
peaceful homes or in the quiet seclusion of a voting booth are
not so easily moved.
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The reactionary argument that the people are turbulent, un­
duly excitable, that they are wild and visionary, that they are
unduly passionate, that they comprise an irresponsible mob
unworthy to be trusted with power, conies with poor grace from
those who hold their honors, their dignities, and their salaries
from these same people.
The long-suffering patience of the people is best evidenced by
the forbearance with which the people permit men in public
service to give currency and approval to these unfounded and
absurd criticisms of the great American electorate.
IF

PBOPLE

ARE IN T E L L IG E N T

WHY
ARE
JU D G E S?

THEY

NOT

ENOUGH

IN T E L L IG E N T

TO ELECT
ENOUGH

AND RECALL
TO

ELECT

SEN ATORS,

AND

RECALL

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Every Member of Congress is elected by direct vote of the
people. Have the people intelligence enough to elect Senators
7107— 10319

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and Members of the House, and yet do they lack intelligence to
elect or to recall a judge? Would they recall a Senator or a
Member of the House who performed his duty faithfully and
truly represented his constituency?
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THE

C H IE F VALUE OF T H E RECALL W IL L BE FOUND IN M A K IN G IT S USE
U N NECESSARY.

Mr. President, the chief value of the recall will not be the
exercise of this power in actually recalling judges, but the con­
trary. If the power of recall exists, the conduct of judges will
be so exemplary, so satisfactory to the people of the United
States, that no recall of any Federal judge would ever be
necessary. The moment the recall went into effect the courts
would promptly discontinue their unauthorized, unconstitu­
tional, and grossly improper conduct of declaring an act of
Congress unconstitutional. The Federal courts would no
longer, because of their views of public policy, amend acts of
Congress by inserting words in important statutes which Con­
gress had refused to insert, as the Supreme Court, in substance,
did in its opinion in the Standard Oil case and in the Tobacco
Trust case. The courts would no longer deal with undue se­
verity in contempt cases, and government by injunction would
cease. The right of recall and the power of recall would make
the recall itself unnecessary.
PRECEDENTS---- N EARLY A L L T H E STATES DO ELECT T H E IR JUDGES.

Mr. President, when our Federal Constitution was adopted in
1787 none of the judges were elected by the people, although
there was a greatly restricted suffrage; but since that time,
although the suffrage has been greatly enlarged, so that we
have almost universal manhood suffrage and in five States
woman’s suffrage, yet with the growth of modern Democracy
or progressive Republicanism very many of the States have
adopted the doctrine of electing judges and giving them fixed
terms of office. For example:
(Here follow provisions for electing or appointing judges in
the 4G States.)
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It will thus be seen that 36 States elect the judges by popu­
lar vote; Connecticut, Georgia, Rhode Island, Vermont, and
Virginia elect by the general assembly; and Delaware, Maine,
Mississippi, New Hampshire, and New Jersey appoint. All of
the States have the recall by fixed tenure, except Massachu­
setts, New Hampshire, and Rhode Island, all of which recall by
the legislature. Thirty-two o f the States provide by constitu­
tion for recall of judges by the legislature.
It is therefore substantially the unanimous opinion of all the
States that judges should hold by fixed tenure and be subject
to the automatic recall of short terms or by resolution of the
legislature.
When the Constitution of the United States was adopted, in
many States the legislatures directly elected the judiciary, as
in Connecticut, Rhode Island, New York, Delaware, New Jersey,
Virginia, North Carolina, and Georgia, and they exercised con­
trol over the judges by fixing their term o f office “ during good
behavior,” as was done in New Hampshire, Massachusetts, New
York, Maryland, North Carolina, South Carolina, and Virginia,
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and by a short tennre o f office o f one year, a s in Rhode Island,
Connecticut, and Georgia, and by the right of recall by an ad ­
dress o f the legislature, a s in M assachusetts, New H am pshire,
M aryland, D elaw are, South Carolina, and Pennsylvania.
THE

RECALL OP JUD G ES BY ST A T E S .

'■

M any of the States have exercised and now exercise the right
o f recall of the ju d iciary by the address of the legislatures. F or
e x a m p le :
(H ere follow provisions governing the recall in 32 States.)
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In m any o f the States— A labam a, D elaw are, Florida, K en ­
tucky, Louisiana, M ichigan, M ississippi, Nevada, Pennsylvania,
South Carolina, T exas, and so forth—-the language is nsed in
the constitution that where the offense charged is not sufficient
ground for impeachm ent that judges m ay be recalled or re­
moved by address o f the legislature.
v
IM P E A C H M E N T IS M ERELY A FORM OF RECALL.

I t is not denied that judges should be impeached when guilty
of high crimes.
A ll the State constitutions, and the United
States Constitution also, provides for this, and it is justified by
reason. B u t impeachment is fa r more serious than recall. Im ­
peachments involve the conviction for crim inal conduct. The
recall is a much more benign remedy, and can be invoked where
the fa u lt of the judge or the reason for rem oval is not so great
as in the case of impeachm ent and m ay be Invoked w ith honor
to the judge who h as become infirm and who m ay for his own
good be retired on a pension. A ll of the States provide for
recalling judges by impeachment, but this recall carries dis­
grace.
T H E SH O RT TENURE OF O FFICE OF A JUDGE IS A FORM OF RECALL.

M r. President, the short tenure o f office is a form o f recall, by
virtue o f which the people who elect judges or have them elected
by the legislature, or appointed by the governor, prevent them
from becoming a judicial oligarchy, prevent them from becom­
ing tyrannical, and prevent them from becoming judicial rulers
or indulging any unseemly exercise o f power by recalling them
w ith a short tenure of office.
A s I pointed out, three of the States when the Constitution
w as fram ed elected judges only fo r 12 months. It is w onderful,
when a careful exam ination is made, to see how universally the
people of this country have provided against judicial oligarchy
in the S tates by a fixed tenure of office.
I call attention to
this record, giving all of the States in order, the number of
years for w hich the higher State judges are elected, and how
elected or appointed, and the number o f these States which at
the sam e tim e, in addition to the short tenure, exercise the right
of recall directly through the legislature.
T h irty-fou r of the States elect judges by the qualified electors,
six others elect judges by the general assembly, and only six
States appoint by the governor and council. Forty-three States
exercise autom atic recall by the fixed or short tenure o f office
and 32 States recall directly by the legislatu re; and no State
fa ils to have the right o f recall either by the short or fixed
tenure or by tbe legislature.

7197— 10319

TENURE OF O FF IC E OF STATE JUDGES. ETC.

' Alabama, 5 years. Recall by legislature. Elected by qualified electors
of State.
Arkansas, 8 years. Elected by qualified electors of State.
California, 12 years. Recall by people’s vote (pending). Elected by
qualified electors of State.
Colorado, 9 years. Elected by qualified electors of State.
Connecticut, 8 years.
Recall by legislature. Appointed by general
assembly.
Delaware, 12 years. Recall by legislature. Appointed by governor.
Florida, G years. Recall by legislature. Elected by qualified electors
of State.
,,
Georgia. 6 years. Recall by legislature. Elected by general assembly.
Idaho, 6 years. Elected by qualified electors of State.
Illinois, 9 years. Recall by legislature. Elected by electors of each
district.
Indiana, 6 years. Recall as by law. Elected by electors of State at
large.
Iowa, 6 years. Elected by qualified electors of State.
Kansas, 6 years. Recall by legislature. Elected by qualified electors
of State.
Kentucky, 8 years. Recall by legislature. Elected by districts.
Louisiana, 12 years. Recall by legislature.
Elected by electors of
State.
Maine, 7 years.
Recall by legislature. Appointed by governor.
Maryland, 15 years.
Recall by legislature.
Elected by electors of
districts.
Massachusetts, during good behavior.
Recall by legislature.
Ap­
pointed by governor.
Michigan, 8 years. Recall by legislature. Elected by electors of State.
Minnesota, G years. Elected by electors of State.
Mississippi, 9 years. Recall by legislature. Appointed by governor.
Missouri, 10 years.
Recall by legislature.
Elected by electors of
State.
Montana, 6 years. Elected by electors of State at large.
Nebraska, 6 years. Elected by electors of State at large.
Nevada, 6 years. Recall by legislature. Elected by qualified electors
of State.
New Hampshire, during good behavior.
Recall by legislature. Ap­
pointed by governor and council.
New Jersey, 7 years. Appointed by governor.
New York, 14 years.
Recall by legislature. Elected by electors of
judicial districts.
North Carolina, 8 years. Recall by legislature. Elected by qualified
voters of Si ate.
North Dakota, 6 years. Elected by qualified voters of State.
Ohio, 5 years. Recall by legislature. Elected by electors of the State
at large.
Oklahoma, 6 years. Elected by electors of judicial districts.
Oregon, 6 years. Recall by people's vote. Elected by qualified electors
of State.
Pennsylvania, 21 years.
Recall by legislature. Elected by qualified
electors of State.
Rhode Island, subject to resolution of general assembly. Recall by
legislature. Elected by the two houses in grand committee.
South, Carolina, 8 years.
Recall by legislature.
Elected by joint
assembly.
South Dakota, G years. Elected from districts by electors of State at
laTge.
Tennessee, 8 years. Recall by legislature. Elected by qualified voters
of the State.
Texas, 6 years. Recall by legislature. Elected by qualified voters of
the State.
Utah, G years. Recall by legislature. Elected by qualified voters of
the State.
Vermont, 2 years. Elected by senate and house of representatives in
joint assembly.
Virginia, 12 years.
Recall by legislature.
Elected by general as­
sembly.
Washington, G years. Recall by legislature. Elected by qualified elec­
tors of State at large.
West Virginia, 12 years. Recall by legislature. Elected by voters of
State.
Wisconsin, 10 years. Recall by legislature. Elected by qualified elec­
tors of State.
Wyoming, 8 years. Elected by qualified voters of the State.

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It w ill th u s be seen that all o f the S tates have an autom atic
recall of ju d ges by a short tenure o f office, excepting Rhode
Island, N ew H am pshire, and M assachusetts, all three of which
expressly provide in their constitutions for the recall o f judges
by the legislature.
N ew H am pshire has recalled her judges four tim es, and, I
understand, on grounds o f policy. Rhode Island recalled her
judiciary— by dropping them a t the end o f the short tenure—
which declared an act o f the Rhode Island Legislature uncon­
stitutional,
I insist that the recall o f ju dges by the voters of a State,
in the seclusion o f the ballot box, is more conservative than to
remove ju d ges by caucus in a legislature, where passion or in­
terest m igh t affect the judgm ent. The people of A rizona can
be relied upon to deal ju stly w ith this question, and their right
o f self-government in this particular can not be ju stly denied.
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TI1E E LECTIO N AND RECALL OF JUDGES TS J U S T IF IE D EX EVERY P R IN C IP L E
OF SELF-G OV ERN M EN T.

T h e election and recall o f judges, w hich I have shown thus to
prevail in all of the States of the Union, has been adopted by
the various States after discussion and consideration by the
best people in the United States, and their action in regard to
th is m atter is justified by sound reason and common sense.
Since the establishment o f common schools, of high schools, of
university privileges— since the establishment of the m odem
newspapers which penetrate every nook and cranny of the
land— since the growth o f universal intelligence— w hy should
not the A m erican people elect judges who are to serve them on
the bench? I f citizens have a civil dispute, do they not n atu­
rally arbitrate their differences and choose their own arbiters?
And if they are satisfied, who should com plain?
I f citizens o f a village w ish to choose their own justice o f the
peace, w hy should they not have the right to elect such an
official? I f the citizens of a county desire to elect the county
judge, w hat sensible reason can be assigned that those whose
lives and property are subject to the jurisdiction should not
elect the citizen who is a candidate for county judge? D o they
not pay him his sala ry? A re they not self-governing people?
A re they not entitled to the unqualified rights of self-govern­
ment recognized in the D eclaration of Independence and in the
various bills of rights in the several States? Or have we fo r­
gotten the source of authority in this country, and that it
springs from the people and does not descend to the people from,
a governing class? I t seems to be necessary, M r. President, to
recall to the Congress o f the United States and to the country
the principles laid down by the Declaration of Independence,
in which it w as set forth that the right to govern came from
the people and not from the king.
A

J U D IC IA L O LIG ARC H Y, OR J U D IC IA L RU LERS, INDEPEN DENT OF T H E
PEO PLE, NOT C O N SIST E N T W IT H L IB E R T Y AND SELF-G OVERN M EN T AS
SET F O R TH IN D ECLARATION OF INDEPENDENCE AND B IL L S OF R IG H T S ----T H E PEO PLE ARE SOVEREIGN, NOT T H E J U D IC IA R Y ---- T H E SOVEREIGN
POW ER IN T H E PEOPLE M U ST BE E X E R C ISE D FOR T H E W ELFARE OF T H E
PEOPLE.

“ The U nanim ous Declaration o f the Thirteen U nited States
o f A m erica,” issued July 4, 1776, sa id :
W e hold these truths to be self-evident; that all men are created
eq u al; that they are endowed by their Creator with certain inalienable
T1S7— 10319

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rig h ts; that among these are life, liberty, and the pursuit of happiness.
That to secure these rights governments are instituted among men,
deriving their just powers from the consent of the governed; that when­
ever any form of government becomes destructive of these ends it is the
right of the people to alter or abolish it and to institute new govern­
ment, laying its foundation on such principles and organizing its powers
in such form as to them shall seem most likely to effect their safety and
happiness.

T h is declaration is a declaration in effect that all powers of
government emanate directly from the people. A nd this right
is reiterated in the constitutions of alm ost every State in the
Union, declaring in various form s that all powers of govern­
m ent spring directly from the people. For exam p le:
(H ere follow excerpts from 46 State constitutions, showing
all political power to be in the hands o f the people.)
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M r. President, undoubtedly all governing powers spring from
the people, and this fundam ental fact is recognized universally.
One o f the most im portant o f the governing powers is the right
to elect judges and to recall them when they cease to be satis­
factory to the people for any reason whatever, o r iv ith o u t a n y
re a so n iv h a tc v e r . T h e p e o p le a re n o t ca lled u p on to a ssig n a n y
re a so n in e x e r c is in g th is rig h t o f s e lf-g o v e r n m e n t.
IF

JUD G ES SHOU LD BE APPOIN TE D FOE L IF E , W H Y NOT H AVE SENATORS
AND CO NG RESSM EN APPOIN TE D BY T H E PRESID ENT FOR L I F E ?

I f judges for life, w hy not Senators and Congressmen for life?
W h y not prosecuting attorneys for life ? W h y not a President
for life ? W ou ld it not make them more in d e p e n d e n t o f “ popu ­
la r cla m o r ” ? W ou ld it not thus enable them to be free from
the influence of the p r e ju d ic e s , p a ssio n s, and im m a tu r e v i e w s of
the v u lg a r p o p u la c e ?
W ou ld they not, under such favorable
conditions, make better ru le rs o f the people?
But, M r. President, it is not ru le rs o f th e v u lg a r p o p u la ce we
seek. W e demand p u b lic s e r v a n ts , not r u le rs , and we wish these
servants to respect the w ill of the people, and not despise the
people, or view them as a “ vulgar populace.” L et us hear no
more o f “ p o p u la r c l a m o r of the “ tu rb u len c e o f th e d em o c ­
ra cy
o f the “ v u lg a r p o p u la ce .” The people have more w is­
dom, more dignity, and more justice than those ,of their paid
servants who indulge such sentiments or voice such views. No
man has the right to hold public office and thus offend the con­
fidence of those who trust him w ith their powers and dignities.
T H E R IG H T OF RECALL OF JUDGES IS J U S T IF IE D BY REASON AND COMMON
SEN SE AS W ELL AS BY PRECEDENT.
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W h y should anyone contend that a judge who for any reason
is incapacitated to properly serve the people should not be re­
called, except by impeachm ent?
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Should a judge who becomes imbecile, weak of intellect, or a
neurotic, retain power to pass upon the life and property of
citizens, upon the liberty of citizens, w ithout the possibility of
recall except by impeachm ent? Impeachment is too severe in
such a case. The recall m ay be* applied with honor.
Such a
judge having been faith fu l might well be recalled and placed
upon a pension roll by virtue of his past services.

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Shall a judge w ho is a victim o f paresis or of a permanent
m alignant disease continue to w ear the ermine and oppress those
w ho have honored him, and they have no rem edy? Shall his
incompetency, his unfitness, his inefficiency have no remedy ex­
cept by im peachm ent? The recall is a much m ilder system than
impeachment. It operates benignly, and m ay remove a jndge
who becomes infirm, disabled, or inefficient, w ithout disgrace,
and it may be exercised w ith honor to the judge.
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M r. President, a judge upon the bench is only a human being
after all, and he m ight become intemperate, not sufficiently to
ju stify impeachment, perhaps, bift sufficiently to ju stify recall.
H e might become mentally incapable or physically incapable,
not sufficiently, perhaps, to ju stify impeachment, but quite suffi­
ciently to ju s tify recall for the benefit of the service.
Such a ju dge might become corrupt and be so skillful in his
corrupt judgm ents that it w ould be impossible to im peach; and
yet the wisdom of his removal by recall might be beyond d ou bt
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M r. President, there are many degrees of m alfeasance and of
m isfeasance ju stifyin g recall which w ould not ju stify impeach­
ment. M r. President, a judge upon the bench is merely a law yer
employed by the people, at a sala ry, to interpret the law . H e
does so in the light of his environment, influenced by his educa­
tion, by his previous political and judicial predilections, influ­
enced by his long practice at the bar. Perhaps he m ay have
been the valued attorney of various powerful corporations,
whom he has long served and whose interest in him has led to
his preferment on the bench by the skilled influences of commer­
cial interests brought to bear upon llie appointing power. Sup­
pose such a judge in a series of decisions uniform ly decided
cases against the interests of the people, whose servant he had
become, and uniform ly decided such cases in favor of special
privilege, whose paid servant he form erly was. Should the
people have no right to recall him except by impeachm ent?
Such a judge may be perfectly conscientious; but will that
suffice to ju stify his continuance in office under such circum­
stances?
M r. President, the right of recall of judges is all the more
important when wre recognize the fa c t that the big interests of
this country have taken infinite pains to bring about the nomi­
nation and promotion as Federal judges of those whose opinions
and bias of mind w ere known to be favorable to their point of
view'.
W henever a vacancy occurs on the Federal bench, immediately
the most lively and active pressure is brought to bear by vari­
ous business interests in favor, of candidates desired by them,
and I pause to remark that it is quite im m aterial whether such
candidate has previously been regarded as a Dem ocrat or as a
Republican.
I do not mean to suggest that candidates thus urged are in
any degree dishonest or corrupt, although that is alw ays a pos­
s ib ility ; but I do mean to s * y that they are merely human
beings.
T h at such candidates have been practicing law yers,
some good law yers and some not so good, gives them no divine
unction of infallibility.
T h at they are influenced and con7197— 10319

9
trolled in their opinions by their education and their environ­
ment and by the argum ents which they have previously been
engaged in m aking is absolutely certain.
I do mean to say
that corporate interests do seek to place upon the Federal bench
and in the State courts those candidates who are known to
favor the point of view of the special interests as against the
interests of the people, and that I do believe such appointments
on the Federal bench are the rule and not the exception.
A short time ago I had the honor of calling the attention of
the Senate to an illum inating instance of how judges appointed
to discharge the most important work are influenced by their
previous environment. T h is w as illustrated by the record of
the Electoral Commission of 1S77, appointed to determine who
should be President o f the United States— whether Mr. Tilden,
of New Y ork, or M r. H a yes, o f Ohio.
T h at commission w as composed of five Justices of the Supreme
Court of the United S tates— Hon. Joseph P. Bradley, Hon.
N athan Clifford, Hon. Samuel F. M iller, Hon. Stephen J. Field,
and H on. W . S tron g; five distinguished United States Sena­
tors— Edm unds, M orton, Frelinghuysen, Thurm an, and B a y a r d ;
and five great leaders of the H ouse of Representatives— Mr.
Payne, M r. Hunton, M r. Abbott, Mr. Garfield, and Mr. Hoar.
T h is distinguished commission passed upon four contestedelectoral cases involving the electoral vote of Oregon, of South
Carolina, of Louisiana, and of Florida, a voluminous record,
involving many difficult questions, and the remarkable result
follow ed that every one of the 15 follow ed his previous political
'predilection, and by a decision of 8 to 7 decided every point of
importance in that case and decided the result in each o f the
fou r cases in the strictest accord w ith the previous political
opinion of each of these 33 judges sitting upon that electoral
commission to determine the Presidency o f the United States in
the Tilden and H ayes controversy.
It is not necessary to question the integrity of purpose or the
sincerity of judgm ent of any one of the seven great Dem ocrats
who sat on that Electoral Commission or of the eight distin­
guished Republicans who sat on it, but it taught a lesson to this
country that men are profoundly influenced by their previous
environment and partisan prejudices. These illustrations could
be multiplied indefinitely.
Mr. President, this peculiar characteristic of mortal man to
be influenced by his previous opinions m ust not be ignored by
prudent statesmen in determining tbe conduct o f government.
I f the Supreme Bench, consisting o f nine excellent gentlemen,
should be composed of nine loyal and patriotic Irishm en, they
would be unanimously in favor of “ home r u le ” for Ireland, and
give most learned reasons for the opinion. Or if this excellent
tribunal should consist of nine loyal and faith fu l Tories, they
w ould conscientiously decide “ home rule ” to be a dangerous
heresy, and give overwhelming argum ents why it should he
denied. N or would it be fa ir or decent to charge them with bad
faith for their decisions or opinions. It is a question of previous
predilection, of previous fixed opinion, of the point o f view which
has molded itself in the personal experience of the judge and
become a part of him.
A President who could be persuaded to appoint a m ajority o f
Irishmen on the Supreme Bench need not be astonished at home7197— 10319







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rule decisions. N or should he be shocked if a T ory bench de­
cide against home rule.
T h is psychological fa ct gives a sound reason for the active
interest of big business in the appointment o f Federal judges.
B ig business men understand perfectly well the importance of
engineering the nomination of judges. Yes, M r. President, and
they understand perfectly well the importance o f engineering
the nom ination of a President of the United States whose honest
sym pathies and view s are in harm ony w ith their point o f view,
so that such an E xecutive should be expected to listen w ith re­
spect and w ith conviction to the convincing argum ents in favor
of candidates for the ermine “ who are the right kind of people.”
These am iable gentlemen who engineer nom inations “ know
exactly w hat they w ant.” A s Abraham Lincoln once remarked,
“ For the kind o f people that like that kind o f thing, it is the
very kind of thing that th at kind o f people like.”
I venture to believe, M r. President, that the people of the
United States have slow ly learned to know exactly w hat they
w ant, and the people w ill acquire it by peaceful processes, by
progressive processes, and, am ong other agencies, by the right
of election and of recall of judges.
T H E RECALL J U S T IF IE D AS A M EANS OF CONTROLLING A J U D IC IA L RU LIN G
P O W ER T H A T H A S VIOLATED T H E CO N ST IT U T IO N OF T H E UN ITED ST A T E S ,
VIO LATED T H E R IG H T S OF T IIE ST A T E S , INVADED T H E L E G ISL A T IV E
F U N C T IO N , AND BECOME AN IN ST R U M E N T OF O PPRE SSIO N TH RO U G H
J U D IC IA L L E G ISL A T IO N .

The Federal courts have invaded the Constitution and in­
vaded the rights of the States and invaded the legislative func­
tion o f Congress and of the States, and have become an instru­
ment through which the special interests have been enabled to
block all progressive legislation o f recent years. The manner in
which this has been done has been -well explained by James
A llen Smith, Ph. D ., professor of political science, U niversity of
W ashington, in T h e Spirit of A m erican G overnm ent; by Hon.
W a lte r Clark, chief justice of the Supreme Court of North Caro­
lina, in his address before the law departm ent o f the U niversity
o f Pennsylvania, April 27, 1906 (E x h ib it B ) ; by Gilbert E. Itoe,
under the title of “ Our Judicial Oligarchy,” in L a F ollette’s,
June 17. 1911, to July 15, 1 9 1 1 ; Pearson’s, A ugust, 1 9 1 1 ; and by
other able law yers and students of government.
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The Constitutional Convention, secret and reactionary though
it was, fou r tim es refused to provide that the Supreme Court
should pass upon the constitutionality of acts o f Congress, to
w it: On June 5, 1787, the proposal received the vote o f two
States o n ly ; on June 6 , July 21, and A ugust 15 the proposal
w as renewed, and at no tim e received the votes of more than
three States.
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T h is mild provision for d isa p p ro v in g a la w b e fo r e p a ssa g e,
w hich still m ight pass by a tw o-thirds vote of Congress, even if
disapproved by the Supreme Court w as overwhelmingly rejected.
T h e court now vetoes an act of Congress after it is passed,
and a unanimous Congress can not m ake it constitutional or
valid i f th e c o u rt's a ctio n is c o n stitu tio n a l.
Such a provision in the Constitution w ould have defeated it
before the States, yet by slow degrees the Supreme Court has
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assumed, without constitutional w arrant, to declare acts of Con­
gress unconstitutional.
The Constitution is one of delegated
powers, and it does not delegate the right to declare statutes
unconstitutional.
The courts o f no republic have such authority. In th e great
Republics of New Zealand, A u stralia, Switzerland, and France,
and even in the Em pires o f Great Britain and Germany, A u s­
tria, and o f Denm ark, the courts exercise no such right.
I understand the constitution of M exico, our great neighbor
on the south, directly forbids the courts to declare unconsti­
tutional an act of the Congress of M exico.
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T h e conduct o f George Jeffreys, lord chief justice o f England,
in holding acts of P arliam ent invalid, caused the revolution of
1GSS in England.
The revolution of 1GSS led to the act of settlement o f 1701.
since which tim e Parliam ent has exercised the right o f recall of
English judges.
Thom as Jefferson, in his letter to M r. Jarvis, in 1S20, wisely
s a id :
You seem to consider the judges as the ultimate arbiters of all con­
stitutional questions ; a very dangerous doctrine, indeed, and one that
would place us under the despotism of an oligarchy.

John M arshall, the fam ous C hief Justice o f the Supreme
Court, before he became C hief Justice, declared in the presence
of the Supreme C o u rt:
The legislative authority of any country can only be restrained by
Its own municipal constitution; this is a principle that springs from
the very nature of society, and the judicial authority can have no right
to question the validity of a law, unless such a jurisdiction is ex­
pressly given by the Constitution.
(W are v. Hylton, 3 Dali., 211.)

No one pretends that the jurisdiction is e x p r e s s l y given by the
Constitution, and John M arshall ought to have known it w as
expressly refused.
In all of the great Governments o f Great Britain, Germany,
France, Switzerland, and so forth, the P arliam ent decides the
constitutionality of its own acts, being responsible to the su f­
frage of the people. T h e Congress of the United States— consist­
ing of 483 elected representatives of the people in the Senate
and House, who took a solemn oath o f office before A lm ighty
God that they would fa ith fu lly observe the Constitution— and
the President are naturally better qualified and fitted to deter­
mine the constitutionality of their own acts, being immediately
responsible to their people at home, than any other power.
They are better qualified to do this than the nine law yers com ­
prising the Supreme Court, who are appointed for life, and who
are not responsible to the people and who are not elected by
the people. The Supreme Court is appointed by the President,
the President being nominated by a national convention con­
sisting o f delegates three degrees removed from the people, and
elected by electors several tim es removed from the people.
Those who are directly responsible to the people, those who
have by constitutional authority the right to make the law s,
are charged by the Constitution w ith the duty o f observing the
Constitution in m aking such laws, and they take a solemn oath
to perform this very function.

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T o allow their decisions to be set aside by any tribunal not
responsible to tlie people, not elected by the people, not subject
to the recall o f the people, or o f the people's representatives, is
to establish a judicial oligarchy and to overthrow the Republic,
I t very nearly overthrew the Republic under the Dred Scott
decision attem pting to nationalize slavery.
T o permit the Supreme Court to nu llify acts of Congress, de­
clared by Congress to be constitutional, is to permit the judicial
branch to overthrow the legislative branch, as it has over­
throw n the antitrust law w ithout declaring it unconstitutional.
No such power w as intended by the Constitution to be granted
to the judiciary branch. T h is doctrine w as most em phatically
denied by President Jackson in the case o f the United States
Bank, which the Supreme Court attem pted to uphold against
his policy. Jackson did not perm it it, and received the ap­
proval of the people of the country.
T H E J U D IC IA L

RU LIN G PO W ER H A S BECOME A B U LW A R K
PRIV ILE G E .

OF S P E C IA L

Up to 1887 20 Federal statutes and 185 State statutes had been held
invalid by the Supreme Court of the United States alone. This does
not include the innumerable State statutes which the lower Federal
courts have nullified under the shield of the Supreme Court decisions.
This list will be found in One hundred and thirty-first United States
Reports, Appendix C C X X X V , and since that time this list has been
greatly increased, and the decisions have been most objectionable since
1887. These decisions have usually been made by a divided court, but
in some cases the change of a single vote would have completely changed
the result. The legislation thus destroyed was practically all carefully
devised to meet existing and recognized evils, and enacted in response
to an overwhelming demand of the people.
(Gilbert E. Roe.)

These various decisions have not only nullified statutes of the
greatest importance, passed fo r the protection of the people, but
other decisions have been made, w hich are, in effect, judicial
legislation.
T H E GREAT IN D U ST R IA L CORPORATIONS H A V E BEEN SH IE L D E D UNDER
TH ESE
D E C ISIO N S, T H E
CONTROL
OF R A IL W A Y S
AND
M ONOPOLIES
OBSTRUCTED, CO M PEN SATIO N FOR IN D U ST R IA L ACCID EN TS DEFEATED,
AND T H E A RB ITRA TIO N OF IN D U ST R IA L D ISP U TE S STRU C K D O W N, AND
VARIOU S STATE ST ATU TES VETOED AND A B O L ISH ED .

Out of the great multitude I subm it a few instances as illus­
trations. F or e x a m p le :
In ex parte Young (209 U. S. 123) the attorney general of Minnesota
is punished for contempt for performing his duty in obedience to the
statute of the State of Minnesota regulating the rates of public-service
corporations.

The s ta t u t e o f T e x a s w as set aside as unconstitutional in the
case o f Galveston, H arrisburg & San Antonio Railroad Co. ver­
sus the State of T exas (210 U. S., 2 1 7 ), taxing the gross re­
ceipts o f railroad companies within the State.
The s ta tu te o f K a n s a s taxin g the W estern Union Telegraph
Co. w as set aside in like manner. (21 6 U. S., 1.)
The Oklahom a, c o n stitu tio n establishing a corporation commis­
sion w as declared invalid under the Constitution o f the United
States by the decision of Justice Hook, March 29, 1911.
Judge Sanborn’s decision in the case o f Sheppard versus
Northern Pacific R ailw ay Co. on A pril 11 practically destroyed
the M innesota statute providing for the regulation of rates *01
public-service corporations.
The fourteenth amendment, intended to protect the negro, has
been tw isted from its purpose to protect the trusts and monop­
olies in imposing long hours of labor on employees on the absurd
7197— 10319

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theory that to deny the employee the right to work long hours is
a denial o f his constitutional “ privileges.”
Everyone knows that the sole intent and purpose of the people in
adding this amendment to the Constitution was to protect the then re­
cently emancipated negroes in their rights of citizenship. The courts,
however, have made this amendment include all manner of trusts and
corporations and of contracts and practices, none of which were even
in the thoughts of the people when they adopted the amendment. In
the hands of the courts this amendment has become a shield to pro­
tect corporations and combinations of wealth from the legislation aimed
at them by an indignant public and also a sword by which statute after
statute has been cut down, enacted by the lawmaking branch of the
Government in the public interest.
(Roe.)
T h e e m p lo y e r s ' lia b ility a ct, for the protection of employees,

w as held unconstitutional by 5 to 1
(39 Cong. Ilec., 11, 1 8 0 4 ;
40 Cong.* Itec., 93, 1905.)
T h e c o m p u ls o r y a rb itr a tio n act, passed as the result of the
great strike at Chicago in 1S94 and intended to prevent the re­
currence of such unfortunate difficulties, w as destroyed by the
Supreme Court. (A d a ir v . U. S., 20S U. S., 1G4.)
T h e i n t e r s ta te -c o m m e r c e a ct has b een em a sc u la ted by the
Supreme Court. (E x h ib it A .)
T h e rv h olcsa le liq u o r in t e r e s t w a s p r o te c te d by the so-called
package decision (L esley v . H ardin, 135 U. S., 1 0 0 ), and it
required a special act of Congress to authorize police powers of
the States to apply to liquor in original packages.
(W ilk erson
v . Ilahrer, 140 U. S., 545.)
T h e p r in c ip les laid d oicn in th e D e c la r a tio n o f In d e p e n d e n c e
w e r e r e v e r s e d in the insular cases, holding that this Republic
had imperial power to govern and control other people as s u b ­
je c t s , et cetera.
T h e w o r k m e n 's c o m p e n sa tio n laio o f N ew Y ork w as, in like
manner, destroyed by the New Y ork courts. (Iv es v . So. Buffalo

lly . Co., 201 N. Y ., 271.)
T h e in c o m e t a x laio w as struck down in like manner by the
Supreme Court. T h e serious error of the Supreme Court in this
case I heretofore pointed out on the floor o f the Senate, where
the inhibition o f a direct tax on a State w as absurdly construed
to inhibit a direct ta x on a citizen of the United States. (M a y
7, 1909, Ilec., 1821, and M ay 17, 1909, Rec., 2104.)
The deci­
sion in his case, by the change of the vote of one jud ge— of
one law yer in this court, appointed at whose instance w e do not
know— has cost the mass of the people of the United States a
hundred million a year for over 1G years, $1,600,000,000 in all,
and relieved those best able to bear the ta x of a like amount.
One billion six hundred m illions of dollars by the vote of one
man, appointed by w hat influence? W e do not know and can
not say. No such power ought to be put in the hands o f any
man. No man not responsible to the people or the representa­
tives o f the people ought to have the power to control the fiscal
policy of this Nation contrary to the law of the people o f the
N ation and contrary to the will o f the Senate of the United
States and the Congress of the United States. No such uncon­
stitutional decision would have been rendered if the court had
been subject to recall.
W h a t better evidence could be afforded o f the patience, for­
bearance, and conservatism o f the people than that they have so
long borne patiently w ith such a decision?

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M r Justice Field, in his opinion in this case, spoke o f the
income tax as “ th e p r e s e n t a ssa u lt u p o n c a p ita l ,” and suggested
that, if the court allow ed it to stand, the tim e w ould come
when the lim itation on the ta x on incomes m ight be designated
by “ a board of w alking delegates.” T h is insolent reference
would have justified his impeachm ent by Congress.
Justice Jackson, on this court, declared this decision “ th e
m o s t d is a stro u s blou) e v e r s tr u c k a t th e c o n stitu tio n a l p o w e r o f
C o n g re ss
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Justice Brow n expressed the fear that the decision, in some
moment o f national peril, w ould rise up to “ f r u s t r a t e th e w ill
and p a r a ly z e th e a r m " o f Congress. H e sa id :
I hope it may not prove Che first step toward the despotism of wealth.
As I can not escape the conviction that the decision of the court in
this great case is fraught with immeasurable danger to the future of
the country, and that it approaches the proportions of a national
calamity, I feel it my duty to enter my protest against it.
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Justice H arlan said it w as to be “ deeply deplored ” “ as a dis­
aster to the country,” and s a id :
I can not assent to an interpretation of the Constitution that impairs
and cripples the just powers of the National Government in the essential
matter of taxation and at the same time discriminates against the
greater part of the people of our country.

Justice Jackson, Justice Brown, and Justice H arlan are not
radicals, but are all conservatives and patriots, and they de­
serve the thanks o f the country for pointing out the dangerous
character o f the decisions o f the Supreme Court in this and
other cases.
T h e most serious feature o f this decision w as that the real
question in the minds of the judges w as not its conflict w ith
the Constitution, but th e ir v i e w o f th e e x p e d ie n c y o f th e in co m e
ta x .
T h e y th o u g h t it had p o lic y, and f o r th a t rea so n fo u n d it
u n c o n stitu tio n a l b y an in telle c tu a l leg erd em a in to s e t a sid e th e
u n b ro k en p r ec ed e n ts o f th e S u p r e m e C o u r t i t s e l f f o r o v e r a
h u n d red y e a r s .
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T H E A N TIT R U ST ACT.

The S h e rm a n a n titr u st la w h as, by the recent decisions o f the
Supreme Court in the Standard Oil case and in the Tobacco
T ru st case by w riting in the word “ unreasonable,” b een e ffe c t­
u a lly d e s tr o y e d .

I t w as loudly proclaimed that the Standard Oil monopoly
had been dissolved by this decision. T h e fact is that the Stand­
ard Oil stock im m ediately went up, instead of down, after this
decision w as rendered. On M ay 15, 1911, the day of the decision,
it was G79; and on M ay 19, four days later, it w as GS6 , after the
owners of this stock had had tim e to digest the opinion.
The packers who had been indicted as guilty o f a crime, under
this statute— Sherman antitrust— im m ediately offered the de­
fense that their restraint o f trade had been reasonable, and as
they are entitled to a reasonable doubt, th e crim in a l p a rt o f this
s ta tu te is m a d e n u g a to r y b y th e S u p r e m e C o u rt o f th e U n ited
S ta te s . The court has, in effect, vetoed the act of Congress by

judicial legislation.
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T H E TH EO RY OF J U D IC IA L IN F A L L IB IL IT Y .

I t has alw ays been the habit o f kings and potentates to sur­
round themselves w ith pomp and ceremony to impress the mass
o f men w ith their sacred function. They have claim ed to re­
ceive the right to rule from God him self, and to rule by divine
right. T h e judge in ancient tim es wore a huge horsehair wig,
silk gown, and ermine. It impressed the people w ith the enor­
mous dignity of the individual so attired. I t raised the presump­
tion o f his infallibility. I t excited the reverence of men, and so
t h o s e w h o h a v e fo u n d th e ir s h e lte r beh in d a ju d ic ia l o lig a rc h y
h a v e im p r e s s e d t r e m e n d o u s ly u p o n th e p e o p le o f th is c o u n tr y
t h e id ea o f ju d ic ia l in fa llib ility . W e are taught that we should

reverence the co u rts; that we should not question their jud g­
ments, and when the Supreme Court o f the United States has
spoken it should no more be questioned than we should question
the W ord o f God.
I believe th a t the people should be taught to reverence the
judicial branch of the Government, and I believe the judicial
branch of the Governm ent should be so fram ed as to m erit rev­
erence. I have a reverence for government. I have a reverence
for the ju diciary. I have a great respect for the judges on the
bench, yet I should not hesitate to vote for the impeachment
o f a corrupt judge, nor would I hesitate to vote for the recall of
a ju dge who merited recall or a judge who regarded an income
ta x as an assault on w ealth. The theory o f judicial infallibility
has the sam e meritorious foundation o f truth as Santa Claus.
I t is a pleasing fiction suitable for very young children.
F our out of five o f these distinguished justices and five out o f
fou r are constantly assuring the country, with great gravity
and decorum, in their various opinions o f the honorable and dis­
tinguished fallibility o f their brethren on the bench. I f we take
a series o f cases, each ju dge in turn w ill be found in the minor­
ity and w ill be discovered in the interesting situation o f having
the m ajority o f the Supreme Court declaring his fallibility.
E ach judge in turn is proven to be fallible by the Supreme Court
o f the United States, until not a single justice is left whose fa lli­
bility has not been ju dicially ascertained by a m ajority of the
Supreme Bench of the United States. T his is interesting but
not surprising, fo r nobody ever imagined in the first case that
the justices on the bench were anything but fallible. In the
Legal Tender cases did they not reverse them selves? And w as
not the court packed by President Grant, with the connivance of
Congress, who first reduced the court and then added to it for
this very purpose? In the Standard Oil case and the Tobacco
T ru st case did not the Supreme Court reverse itself and its own
decisions in the Inter-M issouri Freight case of 1S97 and in the
Joint Traffic case in 1S9S, in which the court expressly refused
to w rite the word “ unreasonable ” before “ restraint o f trade ” ?
T h is fiction o f ju d icial in fallibility m ight as w ell be abandoned
by thinking men.
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Congress is authorized by the Constitution (A rt. I l l , sec. 1)
to ordain and establish the Supreme Court and the inferior
courts. B y the judiciary act o f September 24. 17S9 (1 Stat.,
7 3 ), it did ordain and establish these courts, designating how
many judges should be on the court, providing them with suit­
able conveniences, fixed the time when they should hold office
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and the place where they should hold office, providing their
salary, and annually thereafter made the appropriation to keep
them in office and compensate them for their services.
Congress has, since then, increased the number o f judges of
the Supreme Court. I t has diminished the number of the
Supreme Court, as it did in the Legal Tender cases, to 7 judges,
and thereafter increased the number again to 9 judges (A p r.
10, 1S 6 9 ), and obviously under the law could provide for 25
judges on this bench or 75 or diminish it to 3 judges. I t cer­
tainly has the legal p o w e r to refuse to appropriate its salaries if
it w ants to do so.
T h e exercise of such powers as I have enumerated— the power
of impeachment, the power to ordain and establish the court,
to determine the number o f judges on the bench, the power to
pay or w ithhold salaries, to determine when it shall sit and
where it shall sit— certainly carries w ith it the sm aller and
lesser power o f recalling judges from the bench for bad be­
havior and to determine w hat bad behavior is.
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P U B L IC O PIN IO N OF J U D IC IA L ABUSE.

M r. President, the country has been profoundly disturbed by
the aggression o f the courts, by the nullification o f acts of Con­
gress on alleged constitutional grounds, by judicial legislation,
even where the constitutionality o f the act w as conceded, and by
the other judicial aggressions I have pointed out.
The Republican platform o f 190S declares against certain in­
junctions by the court.
The Dem ocratic platform (19 0 8) protests against government
by injunction.
T h e Independence P arty (1908) condemns the arbitrary use
of injunctions and contempt proceedings by the courts as a vio­
lation o f the fundam ental American right o f trial by jury.
The People’s P arty of 190S em phatically condemned the un­
ju st assum ption o f authority by inferior Federal courts into
nullifying by injunction the laws o f the State and demanding its
prohibition, and so forth.
The Socialist Party, casting h alf a million votes and repre­
senting two and a h alf m illion people in 1908, said “ our courts
are in the hands o f the ruling classes.”
(Col. R oosevelt; President T a f t ; President L in co ln ; United
States Circuit Judge Grossc-up; Hon. W a lte r L. Clark, chief
ju stice of the Supreme Court o f North C a ro lin a ; Hon. W illia m
Jennixgs B r y a n ; M r. Justice H a r la n ; Hon. Gilbert E. R o e ; ana
others, quoted to show the attitude o f the courts.)
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I believe in the sovereignty of the people o f the United States
and not in the sovereignty of any judicial tribunal appointed for
life. I therefore believe that they should be subject to recall,
as the constitution authorizes.
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Is it possible that all o f the States of the Union are wrong
in their view o f the necessity o f controlling the judiciary by
the popular vote? And if they be right, Mr. President, by what
reasoning do the Senators on this floor representing those
States disregard or lightly set aside the ascertained view s of
policy of the people o f their own States?
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