IV
Our lawmakers are not to be blamed for decisions of unconstitutionality. Rather, they are to be congratulated. For the recent tendency of the judges to determine for themselves what shall be enacted into law has developed new refuges for the lawmakers. We have now Solon, the legislator, and Rhadamanthus, the judge, in new rôles—the rôles of the good and bad partner of Dickens’s novel. To the humble voter, when the pressure from below conflicts with the pressure from above, Solon is now able to stand as the supporter of popular measures, and to throw upon the less responsible Rhadamanthus the onus of declaring them bad law. The fury of the magnate at Solon’s demagogy is mitigated, if not extinguished, when he considers the difficulties of the lawmaker’s position, and especially by the further consideration that Rhadamanthus has the final word to say. Solon has other refuges, it is true; and sometimes these must be availed of, for it is not always certain that a projected popular measure can be declared unconstitutional. For several years it had been considered possible, for instance, that an employers’ liability act, if passed in New York, would stand the test of the courts. It became the custom, therefore, when an adequate measure on this subject was introduced, for the adverse interests to introduce a conflicting bill. The ingenious lawmaker thereupon regretfully found a divided public sentiment, and as a consequence no bill was passed. There are no reasons at hand for accounting for the fact that at the last session of the Albany legislature such a measure was actually enacted.