The Position of the Judiciary in the United States
| Author | Alpheus Henry Snow |
| Published date | 01 September 1912 |
| Date | 01 September 1912 |
| DOI | http://doi.org/10.1177/000271621204300118 |
| Subject Matter | Articles |
(286)
THE
POSITION
OF
THE
JUDICIARY
IN
THE
UNITED
STATES
BY
ALPHEUS
HENRY
SNOW,
Attorney-at-Law,
Washington,
D.
C.
At
the
present
time
two
circumstances
are
directing
public
attention
to
the
position
which
the
judiciary
holds
in
the
American
political
system.
The
initiative,
the
referendum
and
the
recall
are
extending
widely,
and
the
prospect
is
that
they
will
soon
become
prevalent
throughout
our
states.
It
is
clear
that
if
these
methods
of
controlling
governmental
action
by
popular
vote
should
be
carried
sufficiently
far,
they
might
be
used
so
as
to
extinguish
the
power
which
our
courts
have
to
treat
as
void
any
governmental
action
which
is
in
excess
of
the
powers
granted
by
our
written
constitutions.
At
the
same
time
that
the
position
of
our
judiciary
is
thus
endangered
by
the
coming
of
these
new
forms
of
political
action,
its
position
has
been
seriously
weakened,
in
the
eyes
of
many
of
our
best
citizens,
by
its
own
action
in
exercising
its
power
to
hold
laws
unconstitu-
tional.
It
is
probably
true
that
some
of
our
courts
have
exercised
this
power
in
a
retrogressive
manner;
that
is,
in
such
a
way
as
to
interfere
with
the
people
in
their
proper
development
and
progress,
and
with
the nation
in
its
fair
competition
with
foreign
nations.
Thus
the
position
of
our
judiciary
in
our
political
system
is
at
the
same
time
endangered
from
without
and
from
within.
If
it
be
true
that
our
courts
are
proving
themselves
unable
properly
to
perform
the
high
and
extraordinary
functions
which
we
have
laid
upon
them,
those
who
advocate
the
extension
of
the
initiative,
the
referendum
and
the
recall
are
entitled
to
be
heard
with
attention.
If
our
system
is
sound,
and
is
merely
operating
badly
for
the
moment
on
account
of
some
specific
defect
or
ambiguity
in
our
constitutions,
or
because
we
are
passing
through
some
temporary
social
or
economic
phase
or
condition,
or
because
of
the
too
great
rigidity
of
the
legal
mind
as
now
trained,
the
initiative,
the
referendum
and
the
recall
as
remedies
for
the
difficulty
must
be
considered
along
with
other
possible
rem-
edies.
If
it
be
true
that
our
system
has
broken
down
by
reason
of
the
inability
of
our
courts to
bear
the
burden
placed
on
them,
the
287
next
most
feasible
plan
is
that
of
&dquo;responsible
government&dquo;
under
an
unwritten
constitution,
as
it
exists
in
other
countries,
and
to
this
the
initiative,
the
referendum
and
recall,
if
applied
in
a
wide
sense,
seem
necessarily
to
lead.
It
therefore
becomes
necessary
to
examine
the
philosophical
and
legal
basis
on
which
our
system
rests,
and
to
make
up
our
minds
whether
our
system
is
reasonable
and
practicable
and
as
good
as
or
better
than
any
other.
If
we
conclude
that
it
is,
and
that
therefore
the
functions
which
we
have
given
our
courts
are
reasonable
and
capable
of
being
properly
performed
by
them
under
all
ordinary
circumstances,
it
will
be
necessary
to
attempt
to
discover
the
reason
why
some
of
them
have
happened
to
make
the
decisions
which
are
regarded
as
retrogressive.
If
we
succeed
in
discovering
these
reasons,
it
will
particularly
be
necessary
to
consider
how
far
the
initiative,
the
referendum
and
the
recall
can
be
used,
if
they
can
be
used
at
all,
as
a
means
of
remedying
any
aberrations
of
our
courts
in
per-
forming
their
superintending
and
nullifying
functions.
An
attempt
will
first
be
made,
therefore,
to
state
the
philo-
sophical
and
legal
basis
on
which
our
system
rests.
The
simplest
way
seems
to
be
to
state
the
propositions
of
politics
and
law
which
underlie
our
system,
beginning
with
the
most
fundamental
and
proceeding
by
successive
steps
to
the
various
derivative
propositions,
illustrating
each,
so
far
as
space
will
permit,
by
reference
to
histor-
ical
facts.
The
fundamental
proposition
upon
which
our
system
rests,
as
it
would
appear,
is,
that
governments
are
the
agents
of
the
governed.
There
are,
as
history,
experience,
and
philosophy
show,
in
the
last
analysis,
only
three
forms
of
government-the
patriarchal
form,
the
agency
form,
and
the
imperial
form.
In
the
patriarchal
form
governmental
power
is
conceived
of
as
derived
from
a
source
external
to
the
people
governed,
that
is,
from
God,
and
is
devolved
from
above
downward
upon
subordinate
o
icers
and
subjects.
In
the
agency
form,
governmental
power
is
conceived
of
as
derived
from
the
people
governed,
who
delegate
limited
powers
to
officers
who
are
neither
above
nor
below
the
people,
but
are
on
an
equality
with
the
people
as
contracting
parties
and
agents.
In
the
imperial
form,
all
power
is
conceived
of
as
derived
from
the
people
governed,
who
are
assumed
to
have
conveyed
all
their
powers
to
a
ruler
or
government,
so
that
the
ruler
or
government
thus
has
a
power
equally
absolute
with
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