NO DIVINE RIGHT OF JUDGES
CONCRETELYto 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 thedecision 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.