New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-26

Nelson on behalf of the Senate Jud'c'"''
committee In reference to Dill pr
posing to amend the Sherman ah''
law TO distinguish between reason"
and unrea sonable restraints. He adus'
After what has been adjudsed, upon scope
con slderatIOn as to the meaning an" ~ the
NJ the antitrust act and In view for
nsaces OF this court when atom. oues-
lltIgants have attempted to reopenn scided
tons that have been deliberately NV what
+ confess to no little surprise as W
has occurred in the present case. ,.,,verad
on reading the opinion just ~ court
rho first inquiry will he, that as the ,,cuIar
is unanimous in holding that toe P@aamnany
and its subsidiary companies IN ,.' act.
%ere illegal under the antitrust Ne
whether those things were In re.nrstate
~ unrea sonabIe restraint OF intersL.
Commerce OF why was it necessary to max ass
an elaborate argument. as Is done vi .r,ie
opinion. to show that according to me ,or ross
NJ reason" the act passed by IonSS INA
should ne ,ntsrpssie" or the word undue
The only answer which, in frankness, onn
Ia given to this question 10 that the SoSS co.
intends to decide that Its delibera.e hat
vent fifteen years ago. 10 the erect inc;
The act permitted no restraint whateNes h.
Interstate commerce. whether reasonns
ar unreasonable was not In accoIu" ~
rou ar say. that It VIII now. for the f,rst
time bring the discussion under me sor:
~ rea son" and amply the rule of EASY ~,
10 the questions to be decided ! ma, hste ouch
authority of this court for saying tnal SUI SUI
curse of proceeding on It's part "ou'"
he judicial legislation
Justice Harlan says the court should
have REPLIED cmphaticalIy to the stand
ard OIL attorneys when they insisted
upon a reversal of the former rulings
Of the court, as follows:
That question. according to our practice
Is not OMEN for further discussion mere
This court long ago deliberately heid g
F'rst-That the act, interpreting rs "or ali
restraints OF interstate commerce " e cT
binations in whatever form, and Whether
reasonable or unreasonaple
Second-The question reIates 10 1880
of public policy in reference 10 comnieIee
among the states and with foreign nations'
and Congress alone can deal with the SUD-
feet. ana,
the authority of Congress. If. under the
eui.e Of construction, II should assume 10
determine a matter of public policy.
Fourth-The parties must 90 10 Sontrvs y,
and obtain an amendment OF the anti-tCus.
act ~ thev think this court was wrong IN
its former decisions. l.,
Fifth-This court cannot and VIII NOT ~,
dicially legislate, since IT'S func.oh l. ~.
declare the law, while IL belongs TO the
legislative department to make the law
Then, referring to the phrase which
Chief Justice White used in his opinion
Justice Harlan adds: Such course.
am sure, would not have offended the
rule Of reason.
At the conclusion of his opinion JUS
tice Harlan acknowledged that his
brethren had deemed 1t best to pursue a
different course from that which he ad-
vocated.
Must Obey Congressional Mandate.
They have now said" explained the
Justice, Ito those who condemn our for
mer decisions and who object to all leg
islative prohibitions of contracts, COM
blnations and trusts in restraint OF inter-
state commerce: You may now restrain
such commerce, provided you are rea-
sonable about it; only take care that the
restraint Is not undue" Justice Harlan
continues:
| After many years Of public service al the
national capital. and after q somewhat close
observation OF the conduct Of public afrairs,
I am impeled 10 say that there 10 ABROAD
| in our land a most harmful tendency 10
bring about the amending OF constitutions
and legislative enactments BY means alone
OF judicial construction. AS a public policy
had been declared by the legislative depart
ment in respect TO Interstate commerce,
| over which Congress has entire control
| under the Constitution, all concerned must
patiently submit 10 what has been lawfully
done until the people Of the United States.
| the source OF all national power shall,
| In their own time upon reflection and
through the legislative department Of the
government, require change Of that
policy.
There are some who say that It is a part
| Of ones liberty to conduct commerce among
| the states without being subject n goh
ernmental authority. But that would not
be liberty regulated by law, and liberty
which cannot be regulated by law IL not TO
be desired. The supreme law OF the land.
which is binding alike upon all--upon Presi-
dents, Congresses. the courts and the peo-
| ple-gives TO Congress, and 10 Congress
alone. authority to regulate interstate COM
merce and when Congress forbids any re.
| straint OF such commerce in any form all
must obey its mandate. To overreach the
| action Of Congress merely by judicial con-
| struction-that is. by indrection-is a blow
| at the integrity of our governmental sys-
tenn and in the end will prove most danger
Gus to all