Unpopular government in the United StatesKales, Albert Martin
History
Unpopular government in the United States
Kales, Albert Martin
United States -- Politics and government
judge in our highest courts holds for a longer term than other judges,
and this fact fortifies him in a determination that property interests
shall be dealt with fairly. All this has been accomplished without the
electorate at large fully perceiving what has happened. The voter is
still submissive to the apparently fair proposition that only lawyers
of excellent standing and ability should be elected to the highest
court of the state. Little does he understand that success in selecting
such men has established the rudiments of a second chamber which is
designed to protect property.
The present arrangement, however, is on the verge of some
reorganization. It is plain that the judicial veto is too drastic.
It may stop all desired legislation along a given line till the
constitution is changed. The difficulties of securing the desired
amendment may not be surmounted for many years. Hence has arisen the
plan for “steam-rollering” the judicial veto by a constitutional
provision that whenever an act of the legislature has been passed
at two different sessions and sustained by the electorate upon a
referendum, it shall be deemed not to infringe the “life, liberty, and
property” clause of the state constitution.[33] The electorate today
is also becoming increasingly alive to the fact that the courts, in
holding legislation unconstitutional, have really abandoned a purely
judicial function and have undertaken in a degree the political
function of a second chamber in protecting property interests from the
legislature. True, the action of the court is in form still judicial.
It purports to apply the constitutional prohibition to the legislation
involved in the particular litigated case arising between contending
parties. But the court’s decision, once made, is now acquiesced in
by all departments of the government and all public officers, as a
complete disposition of the act held void. The compiler of the statutes
omits it from the compiled laws as being no law at all. The court
does in fact veto out of existence an act of the legislature for the
entire state government and the inhabitants of the state. It does this
also in response to a very general prohibition upon the legislature,
such as that “no person shall be deprived of property without due
process of law”--a phrase so vague that it gives the court a discretion
which approaches that of the legislature in considering whether a
proposed act is wise and fair to property or not. The disclosure to
the electorate that courts, in using their judicial veto, are really
exercising a great political power has resulted in an increasing
demand that judges should be elected as political officers; that
their economic and social bias be known--in short, that they have a
politico-judicial platform and be subject to the recall.
Public-domain text, read in full here on John Shaqi.
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