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PIPW
MR. CROLY'S GODKIN LECTURES
must the restraints imposed on the exercise of judicial power be ignored. ACCORDING to Mr. Herbert Croly, If the decisions of the Supreme Court who delivered the Godkin Lec have shown an "aristocratic" tendency, tures at Harvard University this year, it can only be because the Constitution "the Supreme Court has acted as the itself is a bulwark of aristocracy. With most important policy-making branch of clear thinking Mr. Croly's criticism the government," and "the monarchy becomes simply a criticism of the Con of the law, re-enforced by the aris stitution itself; what he says of the tocracy of the robe," has involved "cer Court is mere surplusage. tain penalties of which the friends of a How about the Constitution? Mr. Croly said in one of his five lectures: judicial aristocracy seem scarcely con "The machinery of amendment pro scious." Mr. Croly seems to fall into the com vided by the Constitution did more mon error of confusing the Supreme than anything else to emancipate that Court and the Constitution. Underlying instrument from popular control. The his criticism is the assumption that the Constitution was really king. . . . Gov judges have the power to unmake the ernment by law was monarchical." He Constitution, to act according to their speaks of "our royal Constitution." It own sense of social justice, hence the "was framed in order to escape popular failure of the law to reflect popular de control and to substitute the safe sov mands is the result not of the Constitu ereignty of the law for a theoretically tion but of the temperament of the irresponsible and capricious popular judges, who have shown an "aristocratic" despotism." It was thus the outgrowth tendency. Of course not every judge of a legalism hostile to democracy, in of the Supreme Court has possessed ideal league, we are to suppose, with the qualifications for his office, and not every dominant economic interests of Ameri decision of the Court has been perfect. can society. Here we find the assumption that the Yet the Supreme Court has shown a remarkable liberalizing tendency, as has federal Constitution, though amendable been pointed out many times, especially only by means of a complicated by Mr. Charles Warren in his recent machinery, cannot be changed when the analysis of the numerous decisions of people really desire it, without the need of conquering greater obstacles than the Court on the validity of social re form legislation. Theory requires a those confronting the recently adopted amendments providing for the income sound foundation of fact. All the fail ings of state judges must not be imputed tax and direct election of Senators. We to the judges of the Supreme Court, nor find also the assumption that the people
