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Declaration.” He refused to accept the decision as a settled doctrine for the country:
We believe. in obedience to and respect for the judicial department of government. We think its decisions on constitutional questions, when fully settled should control not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution, as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the Court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this.
Former President Taft was at one time a federal Discussion judge. He has many times defended courts and judges. and He is regarded by many as the most conservative emi- criticism nent representative of the independence of the courts. On the importance of criticising the courts he has written as follows:
The opportunity freely and publicly to criticize judicial action is of vastly more importance to the body politic than the immunity of courts and judges from unjust aspersions and attack. Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subjected to the intelligent scrutiny and candid criticism of their fellow-men. (Present Day Problems, 291.)
Professor Goodnow, in his very careful study called Professor Social Reform and the Constitution, shows that, on the Goodnow's
view whole, the United States Supreme Court has been more liberal than the state courts. At the same time, he points out that while the state constitutions can be amended without great difficulty, it is almost impossi
ble to amend the Federal Constitution. This Constitution, he holds, probably does prevent us from securing some of the social reforms which we need and which other countries provide. He says:
" It is believed, that there are few persons having the welfare of this country really at heart or not blinded by prejudice or class-interest, who will assert that the conditions of the American people are so peculiar that we should close for them the avenues open to other peoples through which orderly and progressive social development in accordance with changing economic and social conditions may proceed. Few can refrain from asking the question why Americans alone of all peoples should be denied the possibility of political and social change (p. 333).”
One measure which he suggests is “ that no court shall decide an act of a legislative body to be unconstitutional, unless the decision is reached by the unanimous action of the members of the court or by the action of any majority that might be determined upon.” But the main remedy for decisions which give so rigid a meaning to the Constitution as to prevent reasonable change is discussion and criticism. After referring to various criticisms, he says:
“In these days of rapid economic and social change, when it is more necessary than ever before that our law should be flexible and adapt itself with reasonable celerity to the changing phenomena of life, it is on this criticism amply justified by our history that we must rely if we are to hope for that orderly and progressive development which we regard as characteristic of modern civilization.”
It scarcely need be added that criticism is not just the same thing as faultfinding. Criticism implies pointing out both the good and the bad and giving reasons so
that reasonable persons can judge whether the critic is right. Faultfinding seldom does any good. Genuine criticism which aims to get at the truth and to bring out clearly what is for the public good is welcomed by intelligent and progressive men.
Another method proposed for making the will of Recall of the people prevail in certain cases where the courts have decisions decided that a given law is unconstitutional is the “recall of decisions." This would refer certain types of laws, passed for the general welfare, but declared unconstitutional by a state court, to a vote of the people for final determination. The proposal of this method came in a political campaign, and the plan was as violently denounced by one party as it was strongly favored by the other. Since the proposal and discussion of this plan, an amendment to the New York constitution has been adopted which is in its idea almost precisely a recall of the famous Ives decision declaring the workman's compensation law unconstitutional. For it does not change anything that was in the constitution of New York, but only provides how this shall be interpreted. It says, “ Nothing contained in this constitution shall be construed to limit the power of the Legislature to enact laws for the protection of the lives, or safety of employees; or for the payment . of compensation for injuries, etc.” The adoption of this amendment indicates a method of changing the interpretation of constitutions according to our customary method of proceeding, that is, by amending the constitution.
More important, as showing the ability of the people The Conto secure what they strongly and persistently desire, has stitution been the recent adoption of two amendments to the
amended Federal Constitution, the one providing for the direct
election of senators by the people of their states, the other providing for the power of Congress to levy an income tax. Both these amendments are strongly democratic. The first makes the senators much more directly representatives of the people. It therefore overthrows the idea of the makers of the Constitution that the senators should be chosen by the legislatures. The Income Tax amendment and the Income Tax law make it possible to raise a part of the revenue for carrying on the government by a tax upon those who are best able to pay it. During the Civil War the United States Government raised money by this form of tax. The Supreme Court had held it to be constitutional, although the language of the Constitution might be regarded as doubtful. But when such a law providing for a tax on incomes was passed by Congress again in 1894, the court, by a vote of five to four, declared it to be unconstitutional. The Sixteenth Amendment * gives clearly to the Congress a power which, according to the view of the court, the makers of the Constitution had not intended to grant.
These amendments may compel us to change our view as to the impossibility of amending the Constitution of the United States. The only important amendments before these had been (1) the series adopted almost immediately to secure the liberties and rights which some feared were threatened by the new Constitution; and (2) the series adopted at the close of the Civil War to make slavery impossible and secure equal rights to all. The Sixteenth and Seventeenth Amend
*"The congress shall have power to lay and collect taxes on incomes, from whatever sources derived, without apportionment among the several states and without regard to any census or enumeration."