The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-04-11
UNCONSTITUTIONAL
THE SHERMAN TRUST ACT rs IN
CONFLICT WITH THE FIFTH
AMENDMENT OF THE CON-
STITUTION OF THE
United STATES.
n Discussion OF This Constitutional Point by
William u. Guthrie OF New York.

n DiscusaIon OF This Constitutional FONT by
William ID. Guthrie OF New York.
Tho decision Of the Supreme Court In the case
of the Trans. Missouri Traffic Association for the
first time authoritatively declares the intended
scope of the provisions OF the Trust act of 1890.
BY such Interpretation Of the statute, 1t now ap-
pears that it was tho intention Of Congress to
prohibit and render criminal every contract In
restraint Of trade or among the several
States or with foreign nations. 1t matters not
how reasonable such q contract may DO, how
necessary for the protection Of tho property
rights OF the contracting parties, how
beneficial to tho community at large
all alike are prohibited. As to almost
all trading and commercial intercourse among
the States. and as to every contract for the export
or import OF merchandise, the people by this
statute may be arbitrarily and unreasonably de-
prived Of liberty to trade and freedom of con-
tract or to pursue their ordinary avocations by
what were heretofore entirely legitimate busi-
ness methods. Nearly every commercial contract
to some extent restraints and limits trading on
the part OF the contracting parties. Associations
Of workingmen engaged in interstate m
and organized for the lawful object Of maintain
ing or increasing wages by peaceful and proper
means are apparently prohibited. The svowed
object OF the statute was to prevent only un-
lawful restraints OF trade, but 1t creates
the greatest restraint ever put upon a civil
lized people in depriving them of freedom
OF trade and liberty to contract for the
due protection of their own interests. Americans
living under a republican form of constitutional
government. with supposed inalienable rights
and the broadcast privileges of individual liberty,
are placed by the Trust act under the ban Of
ilegality and made criminals for doing that
which Is lawful within their own States and
anywhere else in the civilized communities OF
the world. 1t is, therefore, not surprising that
the realization of the intended scope and legal
effect OF this act should have caused dismay
and panic in the commercial world. and have
created profound misgiving as to the future.
In the dissenting opinion, Mr.. Justice White
has shown that the Trust act so interpreted is
not only unreasonable but is "violstive of tho
elementary principles of Justice" 1t is only two
years since the Chief Justice Of the United
States said, in considering this very act, that
acknowledged evils, however grave and urgent
they may appear to be, had better be borne than
the risk be run, in the effort to suppress them,
of more serious consequences by resort to ex-
pedients Of even doubtful constitutionality."
The inquiry Is therefore suggested whether
legislation Of Congress which arbitrarily and
unreasonably deprives persons Of liberty to trade
and freedom of contract is not in violation ff
fundamental individual rights and liberties guar
anteed by the Fifth Amendment to the Constitu-
ton Of tho United States, and whether this 30
called trust act of 1890, as now interpreted, is
not unconstitutional and void.
No question could be more momentous than
this exercise Of Federal power. in view OF its
tendency toward Capitalization and OF the vast
interests which seem TO be threatened. The i'm
portance of the subject demands the fullest in
vestigation and the broadest discussion Of every
point or aspect that can be presented. Such a
question affects every citizen. Signs are not
wanting that further encroachments upon indi-
sidual liberty will be attempted. From arbi-
fary and socielistic measures in any State there
b escape into another and more conservative
State, but from destructive Federal legislation
there is no refuge except repatriation. A policy
DO inimical to progress and may drive
capital into Canada, whose railroads now COM
pete ruinously with our own.
The business interests OF the country and all
concerned in commercial enterprises and in
sestments must realize that II the principle Of
this act be extended there will be no protection
except what may be found in the discretion or
moderation-if not the within or caprice-ot the
ever-changing legislative majority. and that
would be an uncomfortable condition in a society
protesting TO exist under a fixed and enduring
constitutional Government. The apprehension
as to the danger Of despotic and prejudicial leg
fslation by Congress- is not groundless. AS SO
well stated In a famous case by Judge Earl of
the New York Court Of Appeals:
our ltRlslatlOn may Invade one class or rights to-
day and another tomorrow. and II IL can be sane.
TONED under the Constitution. while far removed I'm
time we Will not be far away in practical statesman.
snip from those ages when governmental projects
supervised the building Of houses. the rearing of cat
Tie. the sowing Of seed and the reaping Of grain. and
governmental ordinances regulated the movements
and labor Of artisans. the rate OF wages, the price OF
food. the diet and clothing OF the people. and a llrge
range OF other Affairs long since in all civilized lands
regarded as outside OF governmental functions. Such
governmental interferences disturb the normal ad.
Justments OF the social fabric, and usually derange
the delicate and complicated machinery OF industry
and cause q score Of ills while attempting the removal
Of one"
What is the extent Of the power of Coneress
TO regulate Are there no limitations
Nay not there be such a perversion of the power
e. to require the notification OF the ATTEMPTED
legislationi Surely this power to regulate can.
not involve the power to destroy. The theory Of
our Government is opposed to the deposit any
where OF limit power. unrestraincd by the
established principles of private rights. No
legislative powers In Congress or In the State
Legislatures are absolute and despotic. Arbitrary
and unreasonable Federal laws depriyinR indi-
N1duals or corporations OF their property rights
efof freedom OF contract conflict with the Fifth
Amendment OF the United States Constitution
just as similar arbitrary and unreasonable State
laws are struck down by the Fourteenth Amend.
ment.
The question argued and decided In the Trans
Missouri case was as to the legal import of the
words used in the statute The Supreme Court
found the language plain and unlimited, and de-
clined the task Of making by judicial c~onstruc-
tion a law which Congress did not enact. Its
province was to interpret general language Of
The broadcast scope, and the majority felt that
they could not justify reading into tho act a
limitation which Congress had declined or omit
Ted to insert. But the Court did not consider or
decide any question as to the constitutional
power Of the legislative body TO pass 80 despotic
and unreasonable u measure.
The first ten amendments OF tho Constitution
oithe United States were framed TO declare tho
Dill OF rights OF the people Of the United States,
and were designed as restraints upon the Ma
uonal Government. These amendments origi.
mated in the fear Of the people that powers not