The Washington herald., 1921-05-01
SUPREME COURTS RENTLAW
DECISION SEEN AS MENACE TO
CONSTITUTION, SAYS WRITER
Justice McKenna Discloses Deep Feeling in
Dissenting Opinion.

1 McKenns regarded the Constitution
as being most seriously ENDANGERED,
| His opening paragraph contained
the signs Of bis deep conviction
and the intensity or his dissent
signs which are recognizable even
under the obscuring technicalIty of
the legal words. II read:
The Chief Justice, Mr.. Justice
Van Deventer. Mr.. Justice McReyn-
olds and I dissent from the opinion
and Judgment of the court. The
grounds of dissent are the explicit
provisions Of the Constitution OF the
United States; the specifications OF
the grounds are the Irresistible de-
| ductions from those provisions and,
we think. would require no express
sion but for the opposition of those
whose judgments challenge atten-
tion."
Justice McKenns then quotes the
articles of the Constitution which
are menaced by the statute in nues-
tion and says OF the latter: This is
contrary to every conception of
leases that the world has ever en-
tertained."
Justice Mckenna Deeply Moved.
From this point Justice McKenna
passes to a moving and exalted ex-
preston of reverence for the sane
tity of the Constitution. The Ian
guage has the eloquence Of high
feeling:
This careful adjustment Of power
and rights. makes the Constitution
what IL was Intended to be and is,
a real charter OF liberty. receiving
and deserving the praise that has
been given II as the most wonder
full work ever struck off at any
given time by the brain and pur-
pose Of man And We add, that
more than q century Of trial has
certainly proven the sagacity Of the
constructors and the stubborn
strength OF the fabric
The strength of the fabric can
not be assigned to any one provi-
sion, II is the contribution of all.
and therefore il is not the express
sion of too much anxiety to declare
that q violation of any of its pro-
hibitions Is an eyil-an evil in
the circumstance of violation, of
greater evil because of its ex-
ample and malign instruction. And
against the nrst step to II this court
has warned, expressing a maxim Of
experience-'WITHSTAND BEGIN
NINGS.' Who can know to what
end they will conduct7"
Then. in describing the act Of Con-
gress. Justice McKenna says: IF
such exercise of government be
legal. what exercise of government
is illegal?'
Passing from the present effects
of the decision to the future pos
sibilities OF it. Justice McKepna goes
close to limiting an apprehension of
Russian Socialism. He said:
IF the public interest can extend
a lease ii can compel a lease; the
difference is only in degree and bold
ness. In one as much as in the
other there is a violation of the
positive and absolute right Of the
owner of the property. And IL would
seem. necessarily. IL either can be
done. unoccupied houses or unoc-
cupied space in occupied houses can
be appropriated. The efficacy of
either to afford homes for the home
less cannot be disputed. In response
to an inquiry from the bench coun-
sci replied that the experiment had
been tried or was being tried in q
European country. 1t is to be re-
membered that the legality Of power
must be estimated not by what IL
will do but by what it can do"
Menace TO Constitution.
Returning again to the menace TO