The sun., 1908-12-23
NATIoNALFsM
Are the Feurth aud Fifth AmendmeAts 10
tha Consultation Obsolete?


policies and of those who knowingly
has been and 10 to- use the Interstate
commerce clause of the Constitution In
order to reduce tho reserved rights Of the
several States TO mere geographical
expression.
| Those who have made and are making
the effort are not Federalists Of the school
of Washington. Hamilton or Marshall.
They are Nationalist. That which Roose-
veit believed regarding States rights
and the Tenth Amendment when he wrote
his biography OF Gouyerneur Morris he
probably now believes despite what the
Supreme Court has deoreed. His belief
twenty years ago can be read on page i+2
ct passia OF that biography.
He informed Congress In his last annual
message that "the most effective fight
against my polioies' 10 made sunder
cover OF an appeal to States rights.
He also told Congreas that 1the power to
deal with interstate commerce was granted
absolutely and plenarily to the central
Government, thereby implying that Con-
gress In order to regulate the capital
and labor used by any State In that oom-
merce can disregard the State and all
the restraints imposed by the Constitu-
ton.
How an Intelligent and truthful Presi-
dent could make such a statement to Con-
gress In face OF repeated declarations by
the Supreme Court that the power Of
Congress to regulate interstate commerce
is qualified and limited by the Fourth,
Fifth and Tenth Amendments Is a pro-
found mystery.
Besides the purpose Of my policies
thus to substitute Nationalism for Feder-
alism there has been a furtive design
to promote the success OF those policies
by system Of unconstitutional national
espionage into the private affairs Of
citizens and by compulsory disclosure
of things which State and Federal Consti-
tutions intended to preserve inviolable.
An illustration Of that system Of espionage
and violation OF private liberty is to be
seen in the facts disclosed by q recent
Supreme Court case and In an exposure Of
the secret service methods employed by
the White House in Roosevelt's term now
nearing its end in an undignifed way.
Five years and more ago 1t probably
was expedient. necessary and proper for
the due execution Of the interstate COM
merce law and enforcement of It's penal
ties to compel the production of testi-
mony, whether or not eliminating the
witness, but giving due immunity. That
is very different from compelling testi-
mony when no violation OF law is alleged,
but only in aid Of my policies
In the recent Union Pacific case no one
seems, on either side, to have decided
that every body and all State corpora
tions must obey every valid law enacted
by Congress to regulate interstate COM
merce. The paramount jurisdiction of
Congress must on the one hand be re-
garded, and on the other hand the para
mount Jurisdiction Of each State over it's
own corporations and domestic concerns,
Although the Supreme Court in it's de-
cision few days ago in that case put it's
conclusion solely on an Interpretation Of
the interstate commerce. law. yet the rea-
sons assigned leave little doubt that the
court will not tolerate the "autooratic'
coercive power Of Congress for any less
specific object OF inquiry than "a breach
of existing laws Congress may OF
course exercise grave judicial power to
coerce q reluctant witness when its own
constitutional prerogatives are assailed.
This lucid language by MIR. Justice
Holmes has direct bearing on methods
believed to have been used by Federal
secret service ferrets possibly employing
-the third degree or any other degree.
in mere investigation. He said:
Pefore taking up the words OF the statute.the
enormous scope OF the power asserted for the
commission should be emphasized and dwelt
upon. Tho legislation that the commission may
recommend embraces. ACCORDING to the argu.
mcnts before US, anything and everything that
may be conceived 70 be within the power OF Con.
Rress to regulate II II relates to commerce with
foreign nations or among the several States
And the result OF the arguments is that whatever
might influence the mind Of the commission In Its
recommendation Is q subject upon which Il may
summon Witnesses before Il and require them to
disclose any facts. no matter how private no
matter what their tendency to disgrace the per.
son whose attendance has been compelled II
we qualify the statement and say only legitl-
mateiy influence the mind OF the commission In
the opinion of the court called In aid, stu 10 will
be seen THAT the power II II exists Is unparalleled
In Its vague extent. Its territorial sweep also
should be noticed. ny section ~ of the act OF
1887 the commission has authority to require
the attendance OF witnesses from any place In
the United States. at any designated place Of
hearing. No such unlimited command over the
liberty of all citizens ever was given. far as we
know, In constitutional times to any commits
sion or court.
five did not think. we do that the act clearly,
showed that the power to compel the attendance
of witnesses was TO be exercised only In connec-
tlon with the quasl-judiciai duties OF the commits.
sion, We still should be unable 10 suppose that
such an unprecedented grant was 10 be drawn
from the counseis Of perfection that have been
quoted from sections II and II. We could not
believe on the strength OF other than explicit and
uumlstakabie words that such autocra,ic power
was given for any less SPECIFIC object OF inquiry
than q breach OF existing law, In which. and In
which alone. as We have said there Is any need
that personal matters SHOULD be revealed.
That language may have direct bear
ing on the power given by Congress- in
1904 to the Commissioner Of Corporations
to make investigation, In order to report
such information to the President ~as he
shall require for making reoommenda-
tions of legislation TO Congress, with au-
thority In the Commissioner 1to subpoena
and compel the attendance and testimony
of witnesses and the production Of doou-
mentary evidence. and to administer
oaths.'
It is debated here in Albany whether
IL the State Legislature had by statute
created the White commission to inves-
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