NO DIVINE RIGHT OF JUDGES
CONCRETELY to illustrate just what we mean, our assertion is that the people have the right to decide for themselves whether or not they desire a workmen’s compensation law, or a law limiting the number of hours of women in industry, or deciding whether in unhealthy bakeshops wage-workers shall be employed more than a certain length of time per day, or providing for the safeguarding of dangerous machinery, or insisting upon the payment of wages in cash, or assuming and exercising full power over the conduct of corporations—the power denied by the court in connection with the Knight Sugar Case, but finally secured to the people by the decision in the Northern securities case. Every one of these laws has been denied to the people, again and again, both by national and by state judges in various parts of the Union.
We hold emphatically that these matters are not properly matters for final judicial decision. The judges have no special opportunity and no special ability to determine the justice or injustice, the desirability or undesirability, of legislation of such a character. Indeed, in most cases, although not in all, the judges in the higher courts are so out of touch with the conditions of life affected by social and industrial legislation on behalf of the humble that they are peculiarly unfit to say whether the legislation is wise or the reverse. Moreover, whether they are fit or unfit, it is not their province to decide what the people ought or ought not to desire in matters of this kind. They are not law-makers; they were not elected or appointed for such purpose. They are not censors of the public in this matter. We do not purpose to exalt the legislature at their expense. We do not accept the view so common in other countries that the legislature should be the supreme source of power. On the contrary, our experience has been that the legislature is quite as apt to act unwisely as any other governmental body; and it is because of this fact that the experiment of so-called commission government in cities is being so widely tried. We respect the judges, we think that they are more apt on the whole to be good public servants than any other men in office; but we as emphatically refuse to subscribe to the doctrine of the divine right of judges as to the doctrine of the divine right of kings. We are not specially concerned with the question as to which of two public servants, the court or the legislature, shall have the upper hand of the other; but we are vitally concerned in seeing that the people have the upper hand over both. Any argument against our position on this point is merely an argument against democracy.
THE KEYSTONE OF PROGRESSIVISM
MOREOVER, any professed adherence to our other doctrines, while at the same time this doctrine is repudiated, means nothing. During the last forty years the beneficiaries of reaction have found in the courts their main allies; and this condition, so unfortunate for the courts, no less than for the people, has been due to our governmental failure to furnish methods by which an appeal can be taken directly to the people when, in any such case as the cases I have above enumerated, there is an issue between the court and the legislature. It is idle to profess devotion to our Progressive proposals for social and industrial betterment if at the same time there is opposition to the one additional proposal by which they can be made effective. It is useless to advocate the passing of laws for social justice if we permit these laws to be annulled with impunity by the courts, or by any one else, after they have been passed. This proposition is a vital point in the Progressive program.
To sum up, then, our position is, after all, simple. We believe that the government should concern itself chiefly with the matters that are of most importance to the average man and average woman, and that it should be its special province to aid in making the conditions of life easier for these ordinary men and ordinary women, who compose the great bulk of our people. To this end we believe that the people should have direct control over their own governmental agencies; and that when this control has been secured, it should be used with resolution, but with sanity and self-restraint, in the effort to make conditions of life and labor a little easier, a little fairer and better for the men and women of the nation.
[1] Copyright, 1913, by The Century Co. All rights reserved. The republication of this article, either in whole or in part, is expressly prohibited, except through special arrangement with The Century Co.
Half-tone plate engraved by C. W. Chadwick
ALPHONSE DAUDET