punishment if that decision is unpopular. Judges will naturally be afraid
to render unpopular decisions. They will hear and decide cases with a
stronger incentive to avoid condemnation themselves than to do justice to
the litigant or the accused. Instead of independent and courageous judges
we shall have timid and time-serving judges. That highest duty of the
judicial power to extend the protection of the law to the weak, the
friendless, the unpopular, will in a great measure fail. Indirectly the
effect will be to prevent the enforcement of the essential limitations upon
official power because the judges will be afraid to declare that there is a
violation when the violation is to accomplish some popular object.

The Recall of Decisions aims directly at the same result. Under such an
arrangement, if the courts have found a particular law to be a violation of
one of the fundamental rules of limitation prescribed in the constitution,
and the public feeling of the time is in favor of disregarding that
limitation in that case, an election is to be held, and if the people in
the election vote that the law shall stand, it is to stand, although it be
a violation of the constitution; that is to say, if at any time a majority
of the voters of a state (and ultimately the same would be true of the
people of the United States) choose not to be bound in any particular case
by the rule of right conduct which they have established for themselves,
they are not to be bound. This is sometimes spoken of as a Popular Reversal
of the Decisions of Courts. That I take to be an incorrect view. The power
which would be exercised by the people under such an arrangement would be,
not judicial, but legislative. The action would not be a decision that the
court was wrong in finding a law unconstitutional, but it would be making
a law valid which was invalid before because unconstitutional. In such
an election the majority of the voters would make a law where no law had
existed before; and they would make that law in violation of the rules of
conduct by which the people themselves had solemnly declared they ought