< Page:Popular Science Monthly Volume 84.djvu
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247
THE STRUGGLE FOR EQUALITY

Judge Grosscup can hardly be ultra-radical. As compared with the "constitutional initiative" which exists in California, where an amendment may be initiated by the people without prior formulation by the legislature, Mr. Roosevelt's proposal is conservatism itself.

Moreover, it is conservative in another respect. It is customary at present to abrogate completely the "due process" clause of a state constitution in such states as New York, so far as legislation to safeguard the lives, health or safety of employees is concerned, to enable the legislature to pass a workingmen's compensation law that will stand fire in the courts. That is, the state constitution is amended so as to give the legislature carte blanche in enacting such a law. Beyond doubt, a plan of amendment which enables a particular statute to be validated and leaves the "due process" clause of the state constitution stand against radically different legislation upon the same subject is the more cautious going. A discriminating advocate of the "recall of judicial decisions" aptly says:

We do not wish to take down all constitutional restrictions on an entire class or category of legislation, good or bad, merely to take one sound, wise law out from under the ban. The people do not seek a safety-valve like the whistle on the Mississippi River steamboat described by Lincoln, which stopped the boat whenever the whistle was blown, nor do they want the safety valve of orderly progress in legislation "tied down" beyond the power of the people to utilize when needed. A method of dealing only with the specific statute when the need arises, rather than framing broad generalizations to take all similar statutes out of the prohibition pronounced by the court, has much to commend it to the conservative common-sense of our citizens. . . . Is it not better that the people should pass. . . upon the public necessity and social justice of a particular law which some court may reject, than that, in advance and for all time, broad and paralyzing terms of general exemption should be written into our historic guaranties? Why break out a window, instead of merely raising it, for ventilation?[1]

"The recall of judicial decisions "has been rejected by many on the ground that it is too radical. So far as I am aware, Colorado is the only state thus far to adopt it.[2] In the long run, it may be rejected because it is not radical enough. Many have erroneously supposed that it contemplates submitting to popular vote the issues in a case that has already been tried in court, whereas it merely provides a method for determining the rules that shall govern the trial of similar cases in the future. If adopted, the courts could declare unconstitutional every material increase in a piece of social legislation and necessitate a referendum. In no event, could the people of a state do more than bring the interpretation of the "due process" clause of their fundamental law abreast of the views of the Supreme Court, and they could not do even this if the highest court of a state held a legislative act contrary to the

  1. ↑ William L. Ransom, op. cit., pp. xv-xvi.
  2. ↑ A. Lawrence Lowell, Public Opinion and Popular Government, Appendix B, p. 374.
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