SOURCE:  “The Judiciary and Progress : Address of President Taft, Toledo, Ohio, Friday Evening, March 8, 1912.” Washington, D.C.:  G.O.P., 1912, available online at the Hathi Trust Digital Library:  https://babel.hathitrust.org/cgi/pt?id=hvd.32044053409975&view=1up&seq=3&skin=2021

In the last year or two we have heard much of radical methods of changing the judiciary system. If we would properly consider these proposals and stand on solid and safe ground, we must reexamine the fundamental principles of stable popular government. The history of the world seems to show that our form of government is more enduring and satisfactory than any other. . . . We have fought, beginning with the Revolution, four foreign wars, and we have survived a Civil War of the greatest proportions recorded in history, and have united the battling sections by an indissoluble tie. From our body politic we have excised the cancer of slavery, the only thing protected by the Constitution which was inconsistent with that liberty the preservation of which was the main purpose of establishing the Union. We have increased our business and productive activities in every direction; we have expanded the development of our natural resources to be continent wide, and all the time we have maintained sacred those inalienable rights of man—the right of liberty, the right of private property, and the right to the pursuit of happiness.

For these reasons we believe in popular government. Government is a human instrumentality to secure the greatest good to the greatest number, and the greatest happiness to the individual. Experience, and especially the growth of popular government in our own history, has shown that in the long run every class of the people, and by that I mean those similarly situated, are better able to secure attention to their own welfare than any other class, however altruistic the latter class may be. Of course, this assumes that the members of the class have reasonable intelligence and capacity for knowing their own rights and interest. Hence, it follows that the best government, in the sense of the government most certain to provide for and protect the rights and governmental needs of every class, is that one in which every class has a voice. In recognition of this, the tendency from earliest times in our history has been the enlargement of the electorate to include in the ultimate source of governmental power as many as possible of those governed. But even to-day the electorate is not more in number than one-fourth of the total number of those who are citizens of the Nation and are the people for whom the Government is maintained, and whose rights and happiness the Government is intended to secure. More than this, government by unanimous vote of the electorate is impossible, and therefore the majority of the electorate must rule. We find, therefore, that government by the people is, under our present system, government by a majority of one-fourth of those whose rights and happiness are to be affected by the course and conduct of the Government. This is the nearest to a government by the whole people we have ever had. Woman's suffrage will change this, and it is doubtless coming as soon as the electorate can be certain that most women desire it and will assume its burden and responsibility. But even then the electorate will only be part of the whole people. In other words, the electorate is a representative governing body for the whole people for which the Government was established and the controlling majority of the electorate is a body still less numerous. It is thus apparent that ours is a government of all the people by a representative part of the people.

Now, the object of government is not only to secure the greatest good to the greatest number, but also to do this as near as may be by securing the rights of each individual in his liberty, property, and pursuit of happiness. Hence, it was long ago recognized that the direct action of a temporary majority of the existing electorate must be limited by fundamental law; that is, by a constitution intended to protect the individual and the minority of the electorate and the nonvoting majority of the people against the unjust or arbitrary action of the majority of the electorate. This made it necessary to introduce into the Constitution certain declarations as to the rights of the individual which it was the purpose of the whole people to maintain through the Government against the aggression of any temporary majority of the electorate and to provide in the same instrument certain procedure by which the individual might assert and vindicate those rights. Then, to protect against the momentary impulse of a temporary majority of the electorate to change the fundamental law and deprive the individual or the voting minority or the nonvoting majority of inalienable rights, the Constitution provided a number of checks and balances whereby every amendment to the Constitution must be adopted under forms and with delays that are intended to secure much deliberation on the part of the electorate in adopting such amendments. . . .

These checks and balances, as has been pointed out, include the division of the Government into three independent branches—the legislative, executive, and the judiciary—and the provisions by which usurpation by one of the functions of another is forbidden. The Executive, while he is bound to act in behalf of all the people and to regard their rights, is properly influenced by that discretionary policy which he was elected by his constituents to carry out. In that sense he represents the majority of the electorate. So, too, the legislative members elected to uphold certain governmental views of the majority will properly favor the embodiment of such views in valid legislation. But the judiciary are not representative in any such sense, whether appointed or elected. The moment they assume their duties they must enforce the law as they find it. They must not only interpret and enforce valid enactments of the legislature according to its intention, but when the legislature in its enactments has transgressed the limitations set upon its power in the Constitution the judicial branch of the Government must enforce the fundamental and higher law by annulling and declaring invalid the offending legislative enactment. Then, the judges are to decide between individuals on principles of right and justice. The great body of the law is unwritten, determined by precedent, and founded on eternal principles of right and morality. This the courts have to declare and enforce. As between the individual and the state, as between the majority and the minority, as between the powerful and the weak, financially, socially, politically, courts must hold an even hand and give judgment without fear or favor. In so doing they are performing a governmental function, but it is a complete misunderstanding of our form of government, or any kind of government that exalts justice and righteousness, to assume that judges are bound to follow the will of the majority of an electorate in respect of the issue for their decision. In many cases before the judges that temporary majority is a real party to the controversy to be decided. It may be seeking to deprive an individual or a minority of a right secured by the fundamental law. In such a case, if the judges were mere representatives or agents of the majority to carry out its will, they would lose their judicial character entirely, and the so-called administration of justice would be a farce. . . .

. . . The formidable attack upon our judiciary now is that the judges do not respond sufficiently to popular opinion. It is said that courts are interposing their obstructive power to the enforcement of legislation looking to the relief of the oppressed by declaring laws unconstitutional and by so-called judicial legislation in interpreting into statutes words not intended by the legislature. I do not intend to discuss these charges, although if reduced to specific cases it would be easy to show many of them to be unfounded. For the purposes of this discussion I may admit that courts have erred in this regard, have unduly broadened constitutional restrictions in order to invalidate useful statutes, or have given such statutes a wrong construction. Indeed, I do not hesitate to say that I do not concur in the reasoning of certain courts of last resort as to the constitutional validity of certain social reform statutes, and I am very anxious that the remedies proposed in those statutes should be given effective operation. How is it proposed to remedy these wrongs? In one of two ways, either by the judicial recall or by the recall of judicial decisions. Let us examine these remedies separately.

In the remedy by judicial recall it is proposed to provide by law that whenever a judge has so discharged his duties as to induce a certain percentage of the electorate to deem it wise to remove him, and that percentage sign a petition asking his recall, an election shall take place in which the incumbent shall stand against other candidates; and if he does not secure a plurality of votes he is ipso facto removed. I have pointed out that under our form of government and Constitution many of the issues arising before our courts are in effect issues between the State and the individual, between the majority and the minority—cases in which the popular interest might be greatly excited to secure a favorable judgment. By this system the question whether the judge is to be removed or not is to be left to that majority that may be greatly aroused to secure from him a judgment favorable to them. Could a system be devised better adapted to deprive the judiciary of that independence without which the liberty and other rights of the individual cannot be maintained against the Government and the majority?

But it is said we may have corrupt judges. How are we going to get rid of them? They can be impeached under our present system. But that is said to be too cumbersome. Well, amend the procedure of impeachment. Create a tribunal for removal of judges for cause. Give them an opportunity to be heard, and by an impartial tribunal; but do not create a system by which, in the heat of disappointment over a lost cause, the defeated litigants are to decide without further hearing or knowledge whether the judge who decides against them is to continue in office. It would be hard to devise a more unjust and ineffective method of purifying the judiciary or one less likely to promote courage of honest conviction.

Let us examine the other method proposed for the reform of the judiciary. That is a recall of decisions. By this method, when a supreme court has found a law, intended to secure public benefit, to be invalid because it infringes some constitutional limitation, the decision is to be submitted to a vote of the qualified electors, and if a majority of them differ with the court and reverse the decision, the law is to be regarded and enforced as valid and constitutional.

This is a remarkable suggestion, and one which is so contrary to anything in government heretofore proposed that it is hard to give it the serious consideration which it deserves because of its advocates and of the conditions under which it is advanced.

What the court decides is that the enacted law violates the fundamental law and is beyond the power of the legislature to enact. But when this issue is presented to the electorate, what will be the question uppermost in the minds of most of them and forced upon them by the advocates of the law? Will it not necessarily be whether the law is on its merits a good law rather than whether it conflicts with the Constitution? The interpretation of the Constitution and the operation of a law to violate some limitation of that instrument are often nice questions to be settled by judicial reasoning and farsighted experience, which are not to be expected of the electorate or welcomed by it. If the issue is transferred to them, the simple question will be of the approval or disapproval of the law. What this recall of decisions will then amount to, if applied to constitutional questions, is that there will be a suspension of the Constitution to enable a temporary majority of the electorate to enforce a popular but invalid act. . . .

A most serious objection to the recall of decisions is that it destroys all probability of consistency in constitutional interpretation. The majority which sustains one law is not the same majority that comes to consider another, and the obligation of consistency of popular decision is one which would sit most lightly on each recurring electorate, and the operation of the system would result in suspension or application of constitutional guaranties according to popular whim. We would then have a system of suspending the Constitution to meet special cases. The greatest of all despotisms is a government of special instances. 

But the main argument used to sustain such a popular review of judicial decisions is that if the people are competent to establish a constitution they are competent to interpret it, and that this recall of decisions is nothing but the exercise of the power of interpretation. This is clearly a fallacious argument. The approval of general principles in a constitution, on the one hand, and the interpretation of a statute and consideration of its probable operation in a particular case and its possible infringement of a general principle, on the other hand, are very different things. The one is simple, the latter complex; and the latter, when submitted to a popular vote, as already pointed out, is much more likely to be turned into an issue of general approval or disapproval of the act on its merits for the special purpose of its enactment than upon its violation of the constitution. Moreover, a popular majority does not adopt a constitution, or any principle of it, or amend its terms until after it has been adopted by a constitutional convention or a legislature, and the final adoption is, and ought to be, surrounded with such checks and delays as to secure deliberation. In other words, the course of procedure in the adoption of constitution or amendment is very different from what the proposed vote of a majority on constitutional interpretation would be.

Constitutions ought to be protected by such requirements as to their amendment as to insure great deliberation by the people in making them—much greater than one vote of a mere temporary majority. This method of amending the constitution would give it no more permanence than that of an ordinary legislative act and would give to the inalienable rights of liberty, private property, and the pursuit of happiness no more sanction than that of an annual appropriation bill. Can it be that the power of a temporary majority of the electorate by a single popular vote to do away with rights secured to individuals, which have been inviolable for 700 years, since the days of Magna Charta, approves itself to those who love liberty and who hold dear its sacred guaranties? Would we not, in giving such powerful effect to the momentary impulse of a majority of an electorate, prepare the way for the possible exercise of the grossest tyranny?

Finally, I ask what is the necessity for such a crude, revolutionary, fitful, and unstable way of reversing judicial construction of the Constitution? Why, if the construction is wrong, can it not be righted by a constitutional amendment? The securing of that, it is true, is usually hedged about by checks and balances devised to secure delay, deliberation, discussion before a change of the fundamental law; but such amendments can be made, and if so, the effect of the decision can be reversed in respect to a new law by an amendment with express terms of authority to enact such a law. An answer made to this is that the same judges will construe the amendment and defeat the popular will as in the first instance. This assumes dishonesty and a gross violation of their oaths of duty on the part of judges, a hypothesis utterly untenable. If the meaning of the amendment is made plain, as it readily can be, of course the court will follow it.

I have examined this proposed method of reversing judicial decisions on constitutional questions with care. I do not hesitate to say that it lays the ax at the foot of the tree of well-ordered freedom and subjects the guaranties of life, liberty, and property without remedy, to the fitful impulse of a temporary majority of an electorate. . . .

. . . [W]e are making progress and ought to make progress in the shaping of governmental action to secure greater equality of opportunity, to destroy the undue advantage of special privilege and of accumulated capital, and to remove obstructions to the pursuit of human happiness; and in working out these difficult problems we may possibly have, from time to time, to limit or narrow the breadth of constitutional guaranties in respect of property by amendment. But if we do it, let us do it deliberately, understanding what we are doing, and with full consideration and clear weighing of what we are giving up of private right for the general welfare. Let us do it under circumstances which shall make the operation of the change uniform and just, and not depend on the feverish, uncertain, and unstable determination of successive votes on different laws by temporary and changing majorities. Such a proposal as this is utterly without merit or utility, and, instead of being progressive, is reactionary; instead of being in the interest of all the people and of the stability of popular government, is sowing the seeds of confusion and tyranny.