6o
THE GREEN BAG
but to suppress, or at least disregard, the wishes and the consent of the governed. It was admirably adapted for what has come to pass — the absolute domination of the govern ment by the ' business interests ' which, con trolling vast amounts of capital and intent on more, can secure the election of Senators by the small constituencies, the Legislatures which elect them, and can dictate the ap pointment of the Judges, and if they fail in that, the Senate, chosen under their auspices, can defeat the nomination." It is high time, thinks Justice Clark, for a Constitutional Convention. The situation being as above described, " the sole remedy possible is by amendment of the Constitution to make it democratic, and place the selection of these preponderating bodies in the hands of the people. "First, the election of Senators should be given to the people. Even then consolidated wealth will secure some of the Senators; but it would not be able, as now, at all times to count with absolute certainty upon a majority of the Senate as its creatures." The system of electing the President should be to divide the electoral vote of each state according to the popular vote for each candi date, giving each his pro rata of the electoral vote on that basis, the odd elector being ap portioned to the candidate having the largest fraction. . . . but the result would be that the choice of President would no longer be restricted to two or three states, as in our past history, and is likely to be always the case as long as the whole electoral vote of two or three large pivotal states must swing to one side or other and determine the result. But the most necessary change is to dimin ish the overwhelming power of the Supreme Court. Its power of declaring laws unconsti tutional he believes to be a usurpation, al though he admits that their power, however illegally grasped originally, may have been too long acquiesced in to be now questioned. " If so, the only remedy which can be applied is to make the judges elective, and for a term of years, for no people can permit its will to be denied, and its destinies shaped, by men it did not choose and over whose conduct it has no control, by reason of its having no power to change them and select other agents at the close of a fixed term."
PUBLIC POLICY (Dissenting Opinions). C. A. Hereschoff Bartlett writes in the No vember Law Magazine and Review (V. xxxii, p. 54) a slashing article on " Dissenting Opin ions." He has no good word to say for them; to him they but mean that the dissenting judge is obstinate. . "Certainty of the law is the life of the law, and where principles are so unsettled and disputed as to enable the highest courts to be almost equally divided, the tendency is to lessen the dignity and authority of judicial decision. Any system is wrong which permits the rendering of dissenting opinions and print ing them in public reports of cases — in per mitting anything more than the rendering of the judgment of the court as a court." He holds in horror the frequency in Ameri can reports of the dissenting opinion and " the rarity with which dissenting opinions are found in England is one of the reassuring features of the greatness, stability, and learn ing of the English judiciary." He almost wishes that the same drastic measures could be used to secure unanimity in courts that are sometimes used with juries. "For instance, Stephen, in mentioning some curious old customs, tells us that in addition to being kept together until unanimously agreed, if the jury eat or drink at all, or. have any eatables about them without the consent of the court, and before verdict, they are fin able. Not only this, but it is laid down in the books that if jurors do not agree in their verdict before judges are about to leave town, although they may not be threatened or im prisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. How refreshing it would be, in case of our learned judges in courts of final resort not agreeing on their final judgment, that they should not ejther have food or drink, but in addition should be coerced by being transported from town to town in a cart! Certainly such a spectacle, while it would not lend to the judicial dignity of the court, might be a suc cessful and speedy means of putting an end to dissenting opinions." PUBLIC POLICY (Injunctions). " Effects of Labor Injunctions," by Luke Grant, De
