Dangers That Lurk in the Recall of the Judiciary

• Date: 01 September 1912
• Author: James A. Metcalf
• DOI: 10.1177/000271621204300117
• Published date: 01 September 1912
• Subject Matter: Articles

278;

DANGERS

THAT

LURK

IN

THE

RECALL

OF

THE

JUDICIARY

BY

JAMES

A.

METCALF,

Editor,

The

Dawson

County

Review,

Glendive,

Mont.

The

adoption

of

a

constitutional

amendment

making

the

&dquo; Recall &dquo;

applicable

to

the

judiciary

would

mean

the

substitution

of

the

popular

will,

with

its

unavoidable

temporary

uncertainties,

for

the

judicial

determination

of

the

every-day

causes

which

now

engage

the

attention

of

the

courts.

In

spite

of

their

praiseworthy

faith

in

the

rectitude

of

the

ultimate

conclusion

of

the

people;

and

no

matter

how

logical

or

plausible

their

arguments

in

behalf

of

this

revolutionary

device

for

reversing

the

expressed

will

of

the

electorate

in

regard

to

officials

in

legislative

or

administrative

position,

the

most

ardent

advocates

of

the

recall

must

admit

that,

when

used

as

a

weapon

for

intimi-

dating

the

judiciary,

it

involves

the

gravest

possible

dangers

to

the

stability

of

constitutional

government.

From

the

very

nature

of

the

functions

they

perform,

the

judges

must

be

removed

from

prejudicial

influences

of

whatsoever

character.

Granted

that

the

courts

have

been

influenced

by

the

money

power,

and

that

a

different

condition

must

prevail

in

order

to

guarantee

the

security

of

popular

rights,

yet

what

good

can

be

accomplished

by

swinging

to

the

opposite

extreme?

Two

wrongs

do

not

make

a

right.

And

there

must

be

a

happy

medium

wherein

the

rights

of

all

shall

be

fully

respected

and

protected.

Our

sacred

duty

as

American

citizens,

and

every

consideration

of

personal

and

general

welfare

impel

us

to

seek

that

middle

ground

of

safety,

rather

than

unnecessarily

fly

to

some

radical

extreme.

If

we

can

devise

some

general

reform,

whereby

we

shall

limit

the

power

of

the

courts

in

the

determination

of

the

question

of

constitutionality,

we

shall

have

abolished

the

real

evil

of

&dquo; judge-

made

law,&dquo;

with

its

present

power

of

substitution

for

the

will

of

the

people,

without

in

the

least

impairing

the

ability

or

courage

of

the

courts

in

the

daily

administration

of

justice

between

man

and

man.

Let

us

add

thereto

some

limitation

to

be

placed

upon

technical