The sun., 1907-08-27

PORTLAND. Me, Aug. 28-The American
Bar Association opened its annual session
Today in the City Hall, The meeting OF
,he national association will continue
tuesday and Wednesday. The Interna-
i,onal Law Association will meet on the
three following days.
President Alton B. Parker in his annual
addrese. after reviewing the formation
and amendment Of the Constitution Of the
nited States with regard TO the powers
- the Government and their limitations.
said
The recent claims for Federal Intervention
N directions heretofore unheard Of are based
upon the commerce and post road provisions
nf the Constitution. As 10 the first. the Con
sttution says the Congress shall have power
20 regulate commerce with foreign nations,
snd among the several States. and with the
indian tribee.
Is 1t within the spirit and purpose Of that
provision that Congress may control the
manufactures and all other productive in
erests OF the States. whether controlled by
Individuals, or corporations. the creations
~ the State?
The snswer Of even a casual student OF the
Constitution and the conditions surrounding
Us making must he in the negative. Nor is
authority lacking to support the proposition
hat production is not commerce kidd VS..
Pearson, i7s Z. s., ~. And u 10 authority to
regulate Interstate commerce. not produc-
lion within a State. that the Constitution
cnfsrs upon Congress.
An attempt. therefore. to deny to the harm
cas- and useful products OF a state entry into
Interstate commerce would violate the letter
and spirit Of the Constitution. Such propo-
.ition, ! believe. would not survive the test
~ constitutionality in the Supreme Court.
But the result OF even an attempt on the part
~ Congress to seize the power Of the States
and deprive them Of so large a measure OF
control would he most unfortunate.
u 10 not my purpose to discuss the merits
II the various claims for an increase Of the
Federal power at the expense OF the States.
In the end such of them as are favorably
acted upon by Congress will have to pass
the test Of constitutionality before that great
est OF all courts. the Supreme Court Of the
United States. and such statutes will stand
or fall as they show, or fail to show fidelity
TO the spirit and purpose OF the Constitution.
The attempts, however. on the part OF the
Federal Government to despoil the States
~ the powers and functions belonging 10
Them will not tend to smoothness in the
working OF our dual scheme Of government.
Already IL has had its effect. The indi gnation
If the governing forces OF many Of the states
- already aroused. II is shown in the legis-
lation Of the year II had not a little to do.
IN my judgment. with the recent conflict
From many quarters for the past two years
have come the iteration and reiteration of
the necessity for the assumption OF Federal
control based in the main on the feebleness
or neglect of the State governments. The
tide of speech and writing. iGnot OF public SEN
iiment. has been so strong that only here and
there could he found a person who would
attempt TO stand against IL. When he was
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 leRisla-
ton Of a sovereign State. IL seemed TO some.
doubtless. but the elimination OF a series
Of assaults by the Federal Government upon
State governments. And yet we know that
by the Fourteenth Amendment the power
has been conferred upon the courts Of the
United States to set aside State statutes,
and State Constitutions as well, II they de-
prive any person OF life. liberty or property
without due process Of law
Il was the understanding ] dare say Of
the great majority Of the people who voted
for IL that the purpose Of the amendment
was to protect the negro. But IL was not
so limited in terms. for indeed its language
embraces every person. And while that
amendment remains a part OF the Constltu-
ton the Federal courts have jurisdiction
TO pass upon the question whether given
statute does or does not violate the Four
teenth Amendment.
While this is so. 1t seems to me that courts
both Federal and State. should always bear in
mind that comfy which has thus far enabled
the dual jurisdictions to work together so
harmoniously for the public good. And,
further, that care should be taken that the
procedure shall evince that deliberstion that
doth 80 become a Judge at all times. and espe-
cially when the object OF an action is to de-
clare void the deliberate act OF the legislative
department of a State Government.
have In mind an action In which appllca-
,ion was made for Injunction but before
granting II counsel representing the state
a. well as those representing the plaintih
were heard fully. The Judge wrote his
opinion and then granted an Injunction upon
conditions that would safeguard to the last
penny every person interested. the right
to grant an injunction under such clrcum-
stances cannot be denied. but the propriety
Of granting, on an - pTrte appncauon. an
injunction which refuses effect to statute
can and should he questioned.
A statute upon the face OF Whlcn no in :
perfection appears and which VIII stand.
unless u can he proved that W VIII prevent
he nropavty aTeCt ed from earning a rea SON