The Judicial Recall—a Fallacy Repugnant To Constitutional Government
| Author | Rome G. Brown |
| Published date | 01 September 1912 |
| Date | 01 September 1912 |
| DOI | http://doi.org/10.1177/000271621204300116 |
| Subject Matter | Articles |
(239)
THE
JUDICIAL
RECALL—A
FALLACY
REPUGNANT
TO
CONSTITUTIONAL
GOVERNMENT
BY
ROME
G.
BROWN,
Attorney-at-Law,
Minneapolis,
Minn.
Fallacious
Methods
of
Advocacy
The
other
evening,
on
a
city
street
corner,
I
was
attracted
by
a
hue
and
cry
and
by
discordant
notes
emanating
from
a
badly
played
violin
in
the
hands
of
an
up-to-date
street
fakir
around
whom,
drawn
by
the
smoky
glare
reflected
by
an
improvised
torch
and
by
the
din
of
voice
and
fiddle,
were
gathering
the
passersby
to
listen
to
the
&dquo;lecture,&dquo;
guaranteed
free
to
everybody
and
to
be
followed
by
a
most
extraordinary &dquo;offer&dquo;
for
the
benefit
of
all
mankind.
In
high
sound-
ing
phrases,
smacking
of
all
the
medical
learning
from
aescu1apius
down
to
date,
but
with
quotations
from
standard
authorities
garbled
and
distorted
into
perverted
meanings,
and
with
now
and
then
a
homely
but
subtle
and
insidious
ad
hominem
appeal,
the
fakir
detailed
most
of
the
physical
ills
with
which
the
human
body
is
afflicted
and
alleged
symptoms
of
this
and
that
disease;
and,
having
scared
his
hearers
into
a
receptive
mood,
he
launched
forth
with,
as
it
seemed
to
their
excited
minds,
bursts
of
eloquent
and
impassioned
oratory.
He
represented
the
average
human
being
as
an
object
of
piteous
decrepitude
or as
the
hopeless
subject
of
degenerating
tissues
and
death
dealing
germs.
His
entire
argument
was
a
mass
of
unscientific
exaggeration
of
known
evils
and
of
worse
ones
purely
imaginary.
He
inveighed
against
all
the
medical
learning
of
the
day
and
against
the
expert
knowledge
and
experience
of
those
recognized
as
authority
in
the
science
of
hygiene,
medicine
and
surgery.
All
learning
and
experience
as
shown
from
history
were
nothing.
The
wisdom
of
the
fathers
was
merely
tradition
founded
in
error.
What
they
had
wrought
out
and
handed
down,
the
greatest
discoveries
and
develop-
ments
of
the
science
of
safeguarding
human
life
and
health
which
had
brought
the
human
race
to
the
highest
standard
of
scientific
warfare
with
disease,
were
mere
mockeries
to
the
real
truth.
All
of
which,
240
and
more,
was
easily
proved
by
the
fact
that
the
present
systems
of
treatment
were
unavailing
to
eradicate
disease,
that
men
still
con-
tinued
to
die
and
to
suffer
from
ills
which
brought,
and
at
all
times
threatened,
incapacity
and
death.
Having
thus
demonstrated
his
major
premise,
and
at
the
same
time
all
the
other
assumed
elements
of
his
syllogism,
he
reaches
down
and
brings
forth
a
little
sealed
box
marked
&dquo; The
People’s
Own
Cure-a
Progressive
Remedy ; &dquo;
and
asserts
his
assumed
conclusion
that
this
remedy,
by
its
virtues,
as
demonstrated
by
its
label,
is
the
final
and
only
true
solution
of
the
problems
of
human
illness.
Incredulous
as
I
had
been,
I
seemed
to
become
changed
from
merely
a
curious
listener
to
a
submissive
patient.
Temporarily,
through
a
sort
of
mental
indolence,
the
high-sounding,
oft-repeated
periods
of
the
phrase
maker
had
seemed
almost
to
benumb
my
reason
and
to
send
me
hopelessly
groping
after
new
means
of
self-protection,
for
which
I
was
accustomed,
in
my
saner
moments,
to
rely
upon
a
fund
of
knowledge
slowly
accumulated
by
careful
study
and
experience.
Healthy
as
I
supposed
I
was
beyond
the
average
man
of
my
age,
I
felt,
for
the
first
time,
unusual
dimness
of
vision,
a
weakness
in
my
back,
defects
in
my
breathing,
a
numbness
in
my
feet
and
limbs
and
a
new
sensation
of
heart
palpitation.
How
had
that
fool
of
a
life
insurance
medical
examiner
recently
passed
me
as
sound ?
I
had
now
a
chance
at
least
to
make
good;
and
it
was
only
shortly
before
I
came
to
myself
that
I,
too,
was
reaching
into
my
pocket
to
join
the
crowd
in
buying
and
partaking
of
this
alluring
&dquo;cure-all,&dquo;
thus
suddenly
and
adroitly
flashed
upon
them,
without
analysis
and
without
any
assurance
of
its
nature
or
effects,
except
as
conveyed
by
its
seductive
label.
Not
for
the
purpose
merely
of
indulging
in
a
figure
of
speech,
not
merely
to
reduce
an
answering
argument
to
terms
of
ridicule,
much
less
to
exploit
my
sense
of
humor-on
the
contrary,
as
a
care-
fully
deliberated
illustration
of
the
methods
commonly
employed
in
advocating
the
measures
of
the
Judicial
Recall-I
offer
this
example
of
the
up-to-date
nostrum
vendor.
Like
the
advocates
of
those
meas-
ures,
he
defies
the
experience
of
all
history,
he
carps
at
all
established
institutions,
pictures
all
progress
as
a
delusion
of
stilted
ignorance
and
brands
as &dquo;reactionary&dquo;
all
those
who
hesitate
or
refuse
to
attach
themselves
to
his
newly
discovered
panacea,
brought
now
for
the
first
time
in
modem
history
to
public
attention
under
the
enticing
title
of
a
&dquo; progressive &dquo;
remedy.
No
real
diagnosis,
no
scientific
study
241
or
consideration
of
the
nature
of
the
functions of
the
system
to
which
it
is
to
be
applied,
no
scientific
study
of
remedial
agencies,
no
test
or
examination
of
the
medicine,
whether
it
be
a
compound
or
a
single
element,
no
deliberate
consideration
of
the
necessary
or
possible
effects
of
its
application-only
a
cry
of
pain
and
a
jump
in
the
dark-
these
are
the
characteristics
of
the
methods
employed
by
exhorters
for
the
Judicial
Recall
in
presenting
their
vicious
but
seductive
fal-
lacy,
a
fallacy
which
is
repugnant
to
constitutional
government.
An
examination
of
the
considerations
which
have
been
urged
for
the
Judicial
Recall,
whether
it
be
the
Recall
of
Judges
or
of
Judicial
Decisions,
and
whether
made
by
an
ex-President
or
by
United
States
senators,
arrogating
to
their
peculiar
views
the
exclusive
right
to
the
title
of
&dquo;progressive,&dquo;
shows,
without
exception,
the
adoption
of
the
street
vendor’s
methods.
They
all
dwell
upon
and
exaggerate
the
existence
of
error,
injustice,
imperfections
in
the
administration
of
justice
or
in
the
personnel
of
the
judiciary,
breathe
distrust
for
exist-
ing
conditions
and
disrespect
for
present
institutions
and
incite
dis-
content
among
all
the
restless
elements
of
the
unthinking
and
the
untaught;
and
thereby
confront
large
masses
of
the
people
with
their
first
lessons
in
constitutional
government,
administered
in
the
form
of
demagogic
tirades
poured
forth
not
only
against
our
federal
and
state
constitutions
but
against
any
form
of
constitutional
government.
At
the
very
time
of
the
greatest
sensitiveness
of
public
feeling,
at
a
period
most
critical,
because
of
the
unsettled
condition
of
public
opinion
on
great
political,
economic
and
social
questions,
these
pre-
tending
teachers
of
the
multitude,
who,
as
citizens
and
as
office
hold-
ers
in
various
capacities,
have
sworn
to
support
the
government
of
the
United
States
and
its
constitution,
are
insidiously
filching
from
the
minds
of
those
taught
in
the
principles
of
constitutional
govern-
ment
and
traducing
to
those
yet
untaught,
the
fundamental
and
vital
principles
and
axioms
which
are
the
very
basis of
our
republican
form
of
government.
They
distort
precedent,
misquote
authority
and
misrepresent
the
purposes
for
which
our
government
was
framed.
They
replace
justifiable
feelings
of
contentment
and
prosperity
with
discontent
and
conviction
of
prevalent
social
and
industrial
injustice.
They
even
extend
their
exaggeration
of
unnecessary
evils
to
the
highest
fountain
of
justice
that
has
ever
existed
under
any
human
form
of
government,
to
that
court
which,
under
our
constitution,
stands
as
the
final
protection
against
injustice,
as
to
which
court
the
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