The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-08-27

respecting the territory or other property
belonging to the United States" the court
| says; Bur clearly ii does not grant 10
congress any legislative control over the
states and must, so far as they are con-
cerned, be. limited to authority over the
property belonging to the United States
| within their limits. Approaching the force
| Of this, counsel for the government relies
upon the doctrine OF sovereign and inher-
! ent power adding. I am aware that IN
| advancing this doctrine ! seem TO chal-
| lenge great decisions of the court, and
| speak with Difference. His argument runs
| substantially along this line: All legisla-
| tive power must be vested in either the
| state or the national government; no leg
islative powers belong TO a state govern
ment other than those which affect solely
the internal affairs of that state; conse-
quently ali powers which are national In
their scope must be found vested in the
congress OF the United States. But the
proposition that there are legislative pow
ers 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 this is a government of
| enumerated powers. That this is such
government clearly appears from the con-
stitution. independently OF the amend
! rneuts. for otherwise there would be an
instrument granting certain specified
things made operative to grant other and
distinct things. This natural construction
of the original body of the constitution
I
| amendment
Limitations Imposed.
I'VE are not here confronted with
! question of the extent of the powers OF
congress. but one of the limitations i'm
posed by the constitution on its action,
and it seems to us clear that the same
| rule and spirit of construction must also
be recognized. If powers granted are to
be taken as broadly granted and as car
rying with them authority to pass those
acts which[may be reasonably necessary
| to carry them into full execution; in
other words. If the constitution in its
grant of powers is to be so construed that
congress shall be able to carry into fun
effect the powers granted II IS equally
| imperative that where prohibition or linn
itation is placed upon the power OF cen
gress that prohibition or limitation should
be enforced In its Shirt and to its en-
tirety. It would be a strange rule of con-
struction that language granting powers
is to be literally construed, and that Ian
! guage of restriction is 20 be narrowly
and technically construed Especially is
this true when in respect to grants OF
! powers there is as heretofore noticed the
help found in the last clause Of the eighth
| section, and no such helping clause in
respect to prohibitions and limitations
The true spirit of constitutional interpre-
tation in both directions Is to give fun,
| liberal construction to the language, aim
ing ever to show fidelity TO the spirit and
In this last sentence OF Mr.. Justice
| Brewer is to be found the just rule ty
! which the courts. til" congress and the
citizen can determine with reasonable
certainty whether proposed federal ac-
ton is within it's authority, or constitutes
a usurpation of the powers of the states.
Is it fairly within the spirit and purpose
of some one Of fhe grants If power? u
so. then the action is justified. Oiher-
wise he who supports it is not faithful to
the constitution.
Base of Recent Claims.
/ The recent claims for federal interven-
ton in directions heretofore unheaTd of,
are based upon the commerce and post
| road provisions Of the constitution. As
to the first, the constitution saws the con-
! gress shall have power Ito regulate COM
| merce with foreign nations and among
| the several states, and with the Indian
| tribes" Is 1t within the spirit and pur-
| pose Of that provision, that congress may
/ control the manufactures and all other
productive interests of the states. whether
/ controlled by individuals. or corporations.
| the creations of the state? The answer
/ of even a casual student Ct fhe const-
| tuition and the conditions surrounding its
making must be in the negative. Nor is
| authority lacking to support the propo-
| sition that production is not commerce
! (l[idd vs. Pearson 12S Z. s., u. And 1t is
| authority to regulate interstate commerce.
| not production within state. that the
i constitution confers upon congress. An
attempt. therefore. to deny to the harm
| less and useful products Of a state entry
| into Interstate commerce would violate
| the letter and spirit of the constitution.
| Such a proposition. I believe. would not
| survive the test Of ccnStitutionality in
the supreme court But the result of even
! an attempt on the part OF congress TO
| seize the power of the states and deprive
them of so large a measure of control
would be most unfortunate.
i 1t is not my purpose to discuss the
| crease of the federal power at the ex-
pense OF the states. In the end such
of them as are favorably acted upon by
| congress. will have to pass the test #
/ all courts. the supreme court of the
| United States, and such statutes will
/ stand or fall as they show, or f3il to
| show, fidelity to the spirit and purpose Of
the constitution.
Indignation Aroused.
The attempts. however or the part Of
| the federal government to despoil the
| states of the po Tcrs and functions belong
ing to them, will cot tend to smoothness
| in the working OF our dual scheme of gov
eminent. Already 1t has had It's effect
| The indignation Of the governing forces
| of many of the states is already aroused.
It is showil in the legislation of he wear.
| II had not little to 10. in my judg-
n1ent, with the recent conflict OF judicial
| authority in North Carolina.
| From many quarters for the past two
years have come the iteration and re-
iteration of the necessity for the assump-
ton OF IGQ6Tdl COnliOif DdSeQ III lIl6 main
on the feebIeness or neglect of the state
/ governments. the tide of speech and
Il writing, if not Of public sentiment, has
| been so strong that only here and there
could be found person who would at
| tempt to stand against it. When he WIS
| found his motives were discredited. So
/ when a judge in the performance of what
| he undoubtedly conceived to be his duty.
restrained the operation of the legisla-
ton of a sovereign state, it seemed to
some, doubtless. but the elimination OF
| Of Tx- fada