The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-06-19
An Answer From the Supreme Court9

In the great case OF Kansas VS. Colo
RADIO two States of the Union have been
c~ontending about their respective rights
10 the waters of the Arkansas River.
After the case had been before the Su-
preme Court for three years or so the
United States Government filed a petition
Of Intervention and thus became a third
marty to the suit. The Federal Govern
ment's petition alleged that neither Colo
radios contention nor that OF Kansas was
correct; that the contention of either
State, if sustained, would defeat the
purpose of the Federal Reclamation act
by preventing the irrigation, settlement
and sale of the arid lands in that region
which belong to the United States. Thus
by the action of the Department OF JUS
tice the rights and powers of the Federal
Government were put squarely in oppo-
sition to the rights and powers OF either
or both the States originally the parties
to the litigation.
lux Cclltik db - hihC N"'S -
diate aspect concerning the irrigation
policy and the clash between State rights
and Federal powers in the arid regions,
we believe that the remarkable decision
rendered last month by the ultimate
tribunal at Washington contains matter
of much broader significance on the
general question of Capitalization and
Federal encroachment. In that light the
opinion of the court delivered oil May Is
by MIR. Justice BREWER deserves careful
study by everybody who is Interested in
the open and almost defiant movement
for a radical change in the character Of
our institutions.
Apart from the specific and perhaps
troublesome matters involved in the
irrigation problem itself, the opinion
rendered by Mr.. Justice BREWER dis
cussed with great particularly and an
unmistakable intent the previous de-
cisions OF the Supreme Court bearing
on this general question OF State rights
as against the Capitalization in the
Federal Government of powers not ex-
pressly enumerated in the Constitution,
The opening for this broad and lucid
discussion was afforded by the circum-
stance that the oral argument of Solici-
tor-General HoYT, who appeared for
the Washington Government, seemed
to have been inspired in a great degree
81 the political ~utteranCes Of President
ROOSEVELT and of Secretary Roof. The
Solicitor General even quoted directly
from the Presidents memorable address
at Harrisburg; he made it quite clear
to careful observers that he was speak
ing for the Administration. No fairer
brief statement OF Mr.. HoTI's general
position can be offered than that which
il contained in the Courts decision;
for here Mr.. Justice BREWER himself is
reporting the Capitalization argument
lust as it was understood on the bench
OF the exalted tribunal, and by that bench
deemed worthy of an extended and most
remarkable reply;
Counsel for the Government relies upon the
doctrine Of sovereign and inherent power; adding.
4 am aware that In advancing this doctrine ] seem
70 challenge great decisions Of the Court. and l
speak with Difference His argument runs sub
s~isniislly along this line; An legislative power must
be vested either In The state or the national Gov.
nnsp M IecIsIaINp nopprs helOuF 10 a state
Government other than those which AFFECT solely
the internal affairs OF that State consequently al
pou,1 uhfeh are national IN heft scope must be
wand tsasd IN ihc Congress OF the tinted Sfarss."
Thus the Administration, as the
avowed prepayment of the extension of
Federal power across State lines and into
numberIess new fields Of supervision and
regulation. Thus Solicitor-Genera HoYT,
as representing the Administration and
ae reported by MIR. Justice BREWER.
Next. the reply Of the Supreme Court,
through Mr.. Justice BREWER, TO the fore
going position and argument; the answer
il az, straight and as powerful as any
thing ever delivered from the Supreme
Court 10 destroy dangerous sophistries
Of oonstr uction or 10 contine the func-
tons OF Federal Government within the
limits prescribed and intended by the
Constitution:
But the proposition that there are legislative
powert Affecting the nation a. q whole which belong
IN. although not expressed In the grant OF powers.
70 in direet oonnicl With the doctrine that this Is a
Government Of enumerated powers. That this Is
such a Government clearly appears from the Con
sumuon. independently Of the amendments, for
Otherwise there would>be an Instrument granting
eHtSin specified things made operative TO grant
Snbtr and distinct things, This natural constnIc.
I'm Of the original body of the Constitution is made
absolutely certain By The Tenth Amendment
This amendment. which was seemingly adopted
With precedence Of just such contention A. the
prs'n,. disclosed the widespread tear that the
sttionsl Government, might under the pressure
VW.a.- - ..uZI.