same clause in the federal constitution. For the federal judiciary act makes no provision for the review by the Supreme Court of such an adverse decision, and it therefore stands as the supreme law of a state beyond the power of its people to recall. If the New York Court of Appeals, for example, held an act contrary to the "due process" clause of the state constitution, the people of the state could reverse the decision, but if the same court held the act contrary to the same clause in the federal constitution the decision could not be "recalled" by the people.[1]
The recall of judges and "the recall of judicial decisions" are not so absurd as to be impossible. Three states have already adopted the former, and the failure of public opinion thus far to take up with the latter may be due partly to the novelty of the proposition and the fact that it became the football of heated controversy during the last presidential campaign. The extraordinary power of the courts to declare legislative acts unconstitutional should not be forgotten. When so level-headed an organ as The Survey says that the decisions of the New York Court of Appeals overthrowing the workingmen's compensation and two other acts "should be held up to the reprobation and scorn which they deserve,"[2] surely it is time for every one to give heed. If members of the bar opposed to "the recall of decisions" are wise, they will not content themselves with resolutions of condemnation. They will propose other remedies that are more appropriate. They will try to lessen the abuses which attend the issue of injunctions, and to expedite the trial of cases. They will do everything possible to free the bench from corporate and other sinister influences and to elevate its character. They will use their influence to amend the Judiciary Act so that state laws held contrary to the constitution by the highest courts of the several states may be reviewed by the Supreme Court. They will strive to have the courts try as hard to find laws constitutional as they sometimes appear to try to hold them invalid. They will endeavor to make it more easy to amend the constitution and the constitutions of such states as Pennsylvania and Illinois. They will duly consider requiring more than a mere majority of a court to declare a law unconstitutional. If a legislative act should be presumed constitutional until the contrary is proved beyond a reasonable doubt, something approaching unanimity among the members of a court may well be required to declare it unconstitutional. It is noteworthy that the people of Ohio in amending their constitution in 1912 adopted a provision to this effect. Amendment number nineteen includes the following:
No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.
