The Washington times., 1911-09-16
THE GOVERNORS AND THE
FEDERAL COURTS.

In naming q committee of three gov
ernors to appear before the Federal
Supreme Court, the conference acted
with substantial unanimity. Only one
governor voted against the proposal,
and he was a Democrat. A Democrat
was made chairman of the committee,
but two Republicans were placed in it's
membership.
This committees participation in a
completely new procedure before the
Supreme Court will be revolutionary.
The Supreme Court will receive the
committee, and listen to it respectfully.
The fact that Republicans and Demo
Gratis, North and South, East and West,
united in enthusiastic initiation of this
effort to save the sovereignty of the
States from complete submergence be-
fore the tide of judicial usurpation
makes it the more difficult to bark
effectively or convincingly.
Let us see what the particular issue
is that caused the governors to send
committee to present the case of the
sovereign States before the Supreme
Court. Minnesota passed a maximum
rate law, dealing, of course, solely with
intrastate traffic. Getting at length
to the court of Mr.. Justice Walter H.
Sanborn of the Eighth circuit, that law
was held null and void. Why?
Because, said Mr.. Justice Sanborn,
the State might conceivably reduce the
railroads revenues so much on intra-
state traffic that the roads would be
compelled to increase their rates on
interstate traffic in order to earn
living. 1t was not alleged that such
thing had in fact been done in this
case, but there was the possibility of
it. That would be an interference by
the State with interstate commerce,
which is solely the concern of Con-
gress. So, to make perfectly sure
that there shall be no such interference,
to avoid the possible danger of such
thing, it is best not to let the State
interfere with intrastate rates!
Congress, of course, cannot interfere
with intrastate rates; Mr. Justice San
born holds that the States shall not be
permitted to interfere with them. If
that doctrine should be sustained by
the Supreme Court, it would wipe out
the last shred of State authority over
the whole set of great commercial and
industrial problems. 1t would not sub
stitute a Federal authority. 1t would
simply leave the States shorn of all
authority. Intrastate commerce would
be exempted from all regulatory au-
thority, of whatever kind.
That is what Mr.. Justice Sanborn
proposes to do to our sovereign States.
Is it wonder that, near a year ago,
when this decision was handed down,
The Times declared that it was the
most dangerous usurpation of authority
that any Federal court had yet at
temptedf Is it wonder that the gov
ernors without party or sectional di-
vision agreed to make a striking, start
ling innovation in all judicial procedure,
in order to emphasize their protest
against such a reactionary doctrine be-
coming established
Mr.. Justice Sanborn, Mr.. Justice
Archbold, of New York, and Mr.. JUS
tice Groscup, of Chicago, typefy the
character of. Federal judge that has
brought reproach upon the Federal
bench. Theodore Roosevelt did not
hesitate to air his disaffection with the
toryism of too many Federal judges.
Now we find a convention of all the
governors unanimously taking a posi-
tion in support of State rights as
against Federal courts.
The effort to suppress criticism of
the Federal courts will not get far
when the conference of governors takes
such a step as this. The uplifted finger
of warning, the Mortified "Sh-h-h-h"
of admonition, the frightened mien
suggestive of fear that some Judge may
order the whole country sent to Jail
for contempt-all these are no longer
to suppress frank criticisms of courts,
no matter of what rank.
When Roosevelt and Bryan and the
governors are all agreed in speaking
out their criticism, the rest of us need
not fear being ostracized if we ven
ture occasional misgivings.
Even the Supreme Bench is not
unanimous in the view that it is be-
yond possibility of error or liability
to criticism. Vide the peppery observa-
tions of Mr.. Justice Harlan, anent She
Standard Oil decision.
The governors have done something
that completely justifes the organiza-
ton and maintenance of their conven-
tion. They are big enough and ex-
perienced enough men not to be wor-
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