The Montgomery advertiser., 1907-05-25
4 RECENT SUPREME counr orrs-

We have had an opportunity to ex-
anime the advance sheets of the opinion
of Mr.. Justice Brewer Of the Supreme
Court of the United States In the case
Of the State of Kansas VS.. the State
of Colorado. the United States Inter-
venor. and the opinion seems to US
to deserve attention as a most earn
est dissent on the part of the SUI
preme Court from the legal fancies
being propagated by the President.
Secretary Root and others on the over
'shadowing power of the United States.
The suit was instituted by Kansas
against Colorado on the ground that
Colorado had deplenished the waters
of the Arkansas River to so great an
extent that lands in Kansas adjacent
to that stream were. being destroyed
in value. The National Government
interviewed seeking to GUST both States
on the ground that the lands effected
were in the arid regions and as such
came within the operation of the re-
clamation act of Congress. The opin-
ion denies this contention of the United
States and its petition Is dismissed.
In doing this Justice Brewer in be-
half of the Court reviews the history
of the growth of the Constitution as
exhibited in the opinions of the Court
from the beginning and knocks" with
the utmost vigor the idea the Consti-
tuition set up a Government of tre-
mendous and all but unlimited power.
The President at Harrisburg had warn
ed the country Of the need of court
that would construe the Constitution
more sensibly; that is. it is to be in
ferred, to wit according to Roosevelts
individual notions. Secretary Root in
New York had warned the country IL
the Staes did not hustle in the per-
Torrance of duties assigned them, the
general government would assume
these duties in their stead and dis
charge them. Justice Brewer seems to
have had these airy declarations In
mind when he prepared his recent
opinion. Subordinate to the question OF
the rights of the two States, parties
to the controversy. was the question
whether the National Government had
a superior right to both, springing from
its alleged right to reclaim all arid
lands. In holding the National Gov
eminent had no such power except In
the territories, Justice Brewer reaf-
firms the constant declaration of this
Court from the beginning that this
is one of enumerated pow
ers," and disposes of the Governments
case in the following emphatic lam
guage:
The proposition that there are leg
islative powers affecting the nation as
a whole which belong to. although not
expressed in the grant OF powers, Is
in direct conflict with the doctrine that
powers. That this Is such Govern
ment clearly appears from the Con-
stitution Independently of the amend
ments, for otherwise there would De
fed things made operative to grant
other and distinct things. This nat
ural construction of the original body
certain by the Tenth Amendment. This
amendment, which was seemingly
adopted with precedence. of just such
contention as the present disclosed the
widespread lear tHdb thC ANdNaOhdA oON
eminent might. under the pressure OF
a supposed general welfare, attempt
to exercise powers which had not been
granted With equal determination
the trainers intended that no such as
sumption should ever find justification
In the organic act, and that II in the
future further powers seemed neces-
sary they should be granted by the
people in the manner they had pro-
vidd for amending that act. The
people who adopted the Constitution
knew that in the nature of things they
could not foresee all the questions
which might arise in the future, all
the circumstances which might call
for the exercise of further national
powers than those granted to the
United States, and after making pro-
vision for an amendment to the Con-
stitution by which any needed addi-
tional powers would be granted. they
reserved to themselves all powers not
so delegated. This very mat
ter of the reclamation of arid lands
illustrates this. AS our ma
tional territory has been enlarged. we
have within our borders extensive
tracts of arid lands which ought to
be reclaimed, and II may we'll be that
no power is adequate for their re-
clamation other than that of the Ma
tional Government. But If no such
power has been granted, none can be
exercised