The sun., 1908-04-13
RESERVED RIGHTs OFTHEsTArs.
senator TeIlerU Service n ProSeFving JuS.
tico HArIans warning.


To THE EDITOR OF THE SUN-Sir; Mr.
Teller made q few days ago a noteworthy
conversational speech In the Senate OF
topics whloh his long experience In thu
Western States, In the Senate and servlc'
at the head Of the Interior Department
under President Arthur has qualified hin
10 discuss with exceptional authority. A
New Yorker by birth and early education
he seems TO retain the opinions regarding
the reserved rights Of the several States
both new and old. which we're held by %
many Of the members OF the Free Soil party
Of half q century ago.
The theme Of his remarks was the West
ern lands owned by the United States,
navigable and uHnavgabls rivers. forest
reserves, irrigation Of the vast arid SEQ.
tlons, the legal rights Of the Federal Gov.
ernment therein, and especially lie lawful
authority over water In Western streams.
He demonstrated by repeated judicial
decisions that at least In the several States
the United States has no property in any
water and no legal right TO exact payment for
its use as against the State, The Federal
Government has nothing, he oontended,
In even navlgable waters, excepting an
easement Of navigation, under the inter-
state commerce clause Of the Constitution
which easement II II bound 10 safeguard
for the people against States and individ-
uals. Neither Congress nor the President
can by dams or In any other manner law.
fully destroy that navigation any more
than interstate trade.
Mr., Teller 10 naturally impatient with
young experts at the head Of bureaus In
the Department Of Agriculture who are
urging the Government on 10 60 into the
business Of timber. coal and water selling
from Western forest preserves and rivers
He denied that Congress could In any State
authorize water selling either for irrigation
or as motive power for manufacturing elec-
tricity. He protested against even Gov
ernment timber selling, and 30 enhancing the
price Of lumber for miners.
A useful result Of the speech has been to
place In the Congressional Record, where 1t
will be preserved, the text Of utterances by
Mr.. Justice Harlan Of the Supreme Court
on the reserved rights OF the States which
he made at the Kentucky dinner In New
York last December. His service on that
bench covers thlrty-one years and exceeds
by eleven years that Of the Chief Justice,
who is next TO him In length Of tenure Of
office. Mr.. Justice Harlan has reached the
ripe age Of rs with mental and physical
faculties as good as when he took his seat
in that illustrlous tribunal in 1877. What
he said three months ago OF our country,
its Federal Constitution and highest court
ought TO be worth reading and preserving
1t was the speech OF an optimist having
little patience with a pesslmist, He Said
among other things
What, let me ask are some OF the grounds upon
which the pesslmlst OF these days bases bis fears
for the safety OF our institutions? He persuAdes
himself to believe that the trend In public affairs
10 toward the GENERALIZATION OF all governmental
power IN the nation and the destruction OF the
rights OF the States, n this we're really the case
tfeauiy OF every American would be to resist such
tendency by every means 10 his power
The people OF the United states cherish and will
compel adherence 10 the fundamental doctrine
that tile States are vital parts OF the American sys.
TEN OF government and they viii insist with no
less determination upon the recognition OF the Just
powers OF the States 70 be eGefted alwAya In subj
ordination TO the supreme law Of the lAnd-~as e..
sentlal to the preservation OF our liberties. The
Supreme Court OF the United States has gain and
again declared. upon full consideration that a
close aud nrm union Is necessary for the happiness
Of the American people, and that without tue
states In union there could be no such political
body as the United States"
The national Government, u should ever be re.
nembered, Il one Of limited. delegated powers
aud Is not a pure democracy, In which the will OF
popular majority as expressed at the polls at
particular time becomes Immediately the supreme
law ltisa representative republic. In which the
will OF the people Is to be aScsrtainod In a pre-
scrIbed mode, and carried into effect only BY Ap.
pointed hgentsdsslmated by the people themselves
In the manner indicated by law
With an unmistakable reference to my
policies Mr.. Justice Harlan added:
The pcsslmlst Il misled by the declaration OF
some. happily few In number who hold that what.
ever the words OF the Constitution that instrument
should be so construed as TO make II mean what a
majority OF the people think st Given time, it
should mean. lie IA also miSled by the theory Ad.
yanced b. those who hold that Congress must he
permitted 10 etert any governmental power what
soever, not expressly denied to Il, II that body
deems that Its exercise will promote the general
welfare" But such theories OF constitutional
Asd 80 support In judicial decisions
or in sound reason, least OF all In the nnal JUDI.
ments OF that tribunal whose greatest function Il |
Is 10 declare the meaning and scope Of the funda.
mental law.
And then he implOred his listeners and
readers:
Let us hold fast to the broad and liberal and vet
ssfe. rules OF constitutional construction approved
By the fathers and established by judicial decisions
In doing we will sustain our dual system, under
which the Government OF the Union Ia forbidden |
10 exercise any power not granted 10 II expressly
Or by necessary Implication, while the states will |
not be hlndered etered In the exercise OF powers
hat have not been surrendered by them 70 the
Union and are not Inconsistent with the Constltu-
lion.
What a national blessing it would be,
md how quickly the confidence Of business
men In the Government would revive, IL
at home and abroad could be
,ertain that the next November elections
will confirm the hopeful view that the
doctrine OF stare dscisis will endure in the
supreme Court when Mr.. Justice Harlan and
,iS associates who agree with him shall
lave passed away Ia there not now a
,ervading dread that II possible candidates
lext autumn for the White House and Con-
Press shall prevail the Supreme Court may
70 packed TO uphold a construction Of the
Ast clause Of the eighth section OF the Con-
titution and the implied powers, 30 that a
majority at the polls and In Congress can
end the Constitution 10 Its conception Of