Unpopular government in the United StatesKales, Albert Martin
History
Unpopular government in the United States
Kales, Albert Martin
United States -- Politics and government
The tendency thus disclosed to treat the judges of our highest courts
as political officers whose social and economic bias regarding
legislation must be known in advance is, of course, ruinous to the
performance of their ordinary judicial functions. The electorate will
obtain what it wants, and perhaps what it may be entitled to, from the
judges, but at the expense of the disruption of the whole judicial
system. That would indeed be a calamity. Disorganization in the
administration of justice, due to the popular attitude toward judges
and the courts, is even now beginning to be felt. It will very soon
become apparent that in the rebuilding of our judicial system courts
which handle the general mass of litigation must be confined strictly
to judicial functions. They must administer the law as established by
the legislature and always in subordination to the legislature. If,
then, we are to keep our present plan of protecting property by means
of a court and a constitution, a special court of last resort must be
established for deciding all constitutional questions, the validity
of all municipal ordinances, and all other classes of cases where
the issue is drawn between the electorate acting through a popular
legislative body, and property interests. In order that the veto of the
court may not be too drastic in its effect, there should be given to
the single chamber legislature the power to “steam-roller” its judicial
veto by a second passage of the act after a suitable interval and its
approval on a referendum. Thus we shall have evolved a practicable
second chamber protecting property interests.
It would be only a short step to provide for the submission of all
acts to such a court before they became laws, with a right on the part
of litigants to bring up the question of the validity of the acts as
upon a rehearing. Then it would seem most reasonable that when an act
was presented to the special court of appeal before it became law and
found to be unconstitutional, the court should have power to redraft
the act so that it would accomplish what was desired so far as the
same was permitted by the constitution. If ultimately the right of
litigants to attack the validity of any act which had passed both the
legislature and the court should be cut off, and if the constitutional
limitations upon the legislature should entirely disappear, while at
the same time the members of the body which scrutinized the acts passed
by the popular chamber were appointed by the council of state and held
office for a considerable period, we should have, in what started as a
judicial tribunal, a real second chamber functioning like other second
chambers in furnishing an additional security against legislation which
was unfair to property interests.[34]
Public-domain text, read in full here on John Shaqi.
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