The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-12-27
What Justice Harlan Meant.

a singular misconception pervades a
portion of the press concerning the mean
ing and import Of Justice Harlans adj
dress on the Constitution. II is sometimes
spoken OF as a State rights speech. as II
it were devoted largely to an advocacy Of
the State rights position. Nothing could
be farther from The truth II was rs
much a State rights speech as it was a
plea for a liberal construction OF the Con-
stitution In accordance with the precedents
or the past, and no more. It was, in fact an
irenicon, addressed TO conflicting schools
Of constitutional Interpretation, with a
view 10 uniting them on a sane. yet lib
eral, platform OF constitutional develop
ment Justice Harlan is a believer in
State rights. just as all Of US are believers
in state rights, in the permanence and
efficacy of our dual system, and in the
Importance OF maintaining strong and
competent state and local governments.
so long as that can be done without det-
riment to those objects of national vel
fare which the Federal Constitution was
designed to secure. He accepts without
reserve the doctrine of implied powers IN
vented by Marshall--a doctrine that was
bitterly opposed by the State rights men
OF MarshalPs time. He looks forward TO
a continuous expansion Of Federal activi-
ties into new fields though believing that
those activities must have the authority.
express or implied, OF the Constitution. Il
should be noted. also, that Justice Harlan
gives no countenance to the notion OF the
''neo-Calhounists' that the authority of
Federal courts in matters affecting citi-
zens Of different States should be cur
tailed
To be sure, Justice Harlan is not a
convert to certain advanced ideas held by
some political reformers that the Consu-
tuition means, at any given time. what the
people think it should mean; or that the
Constitution should be generously inter-
preted in terms OF the common welfare
He is noticeabIy silent, however, as to
the important doctrine OF inherent powers,
which was used 20 justify the legal ten
der decision, and which was ably ex-
pounded by the late Senator Plat, of
Connecticut, as affording authority for
national oversee expansion and the adop-
ton of a colonial policy. We may assume
that Justice Harlan is not committed to
doctrine antagonistic at some points
to the doctrine of implied powers. Yet it
would not be surprising if the doctrine
of inherent powers were to be consider
ably extended, especially in its appHca-
bility 10 the national authority in the
field of foreign relations. In fact, so con-
seryative a Jurist as Judge George Gray
has lately expressed the opinion that the
extension Of Federal powers in foreign
affairs was not so dangerous as their, ex-
tension In domestic affairs, notwithstand-
ing the vast increase in executive power
involved in the former. In domestic legis-
lation, the healthfui State rights feeling
which Justice Harlan seeks to inculcate
win always stand in the way Of a too
liberal application Of the doctrine of in
herent powers.
Justice Harlan, of course. would not
have been guilty OF the anachronism of
pleading for a dogma Of State rights
long since extinct. or of advocating
less liberal construction of the Constitu-
ton than that which has prevailed since
the time OF Marshall. and by means Of
which our fundamental charter has been
found to contain ali the powers required
to meet national crises and TO promote
the heelthful development of our polit-
ical institutions. Political safety lies in
the written limitations Of our Constitu-
ton; it also lies in the possibility OF such
constructions Of that Constitution as win