council without a hearing and without assigning the ground for removal upon the address of a bare majority of the legislature.[1]
The issue is not between those who want a judiciary that is subject to the passing whims of the hour and those who do not. Every right-minded man wants a fearless and upright judiciary, and the only question is how to secure one that is not at the same time the slave of precedent. Mr. Roosevelt's remedy for this state of mind is "the recall of judicial decisions/' limited, however, to the recall of decisions rendered by state courts. This would require amending the constitutions of the several states so that a legislative act involving the exercise of the police power, if held unconstitutional by the supreme court of a state, could be submitted to the people and the decision of the court either upheld or reversed. Or the right of recall might be limited to instances where an act is held unconstitutional by a state court on the ground that it deprives one of life, liberty and property without due process of law in contravention of the state constitution. If the decision of the court were reversed, the legislative act would thereafter be excepted from the constitutional prohibition. "This," Judge Grosscup points out, "would be amendment and not construction, the exercise of legislative and not of judicial functions by the people."[2] Strictly speaking, therefore, the proposal is not a recall of judicial decisions at all, but a plan for amending the constitutions of the several states. In other words, a decision handed down in any particular case prior to the time "the recall" or amendment took effect would be res adjudicata but in similar cases arising thereafter the state courts would be obliged to uphold the constitutionality of the statute. The state constitutions as amended in accordance with this plan would be subject to all of the guaranties of the federal constitution just as they are at present.
It is difficult to see why any one should be either wildly enthusiastic or vindictively opposed to such a plan. It involves no new principle. It assumes that the sovereign power rests in the people and that constitutions rightly emanate from and embody the deliberate will of the majority, assumptions that are fundamental to the American constitutional system. There is no more reason why it would result in hasty and ill-considered changes in' the constitutions of the several states, or why it would enable a majority to ride rough-shod over the rights of a minority, than is possible under the method of amendment now in vogue. It preserves the tradition in accordance with which the courts declare legislative acts unconstitutional. It would permit the decision of a court to be reversed only in the sense that the eleventh and sixteenth amendments to the constitution reversed the decisions of the Supreme Court. A mode of amending the state constitutions that meets with the approval of a jurist of such well-known conservative tendencies as ex--
