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Show HARLAN'S DISSENTING OPINION. $L. . Associate Justice Harlan is unrelenting in his opposition to the 1 majority viewi of the supreme court that a '.'restraint of 'trade" to lc be illegal most be an "unreasonable" or "undue"-restraint of trade, and in bis dissenting opinion, filed in court Thursday, Justice Harlan says: , "The supreme law of the land, which is binding alike on all on presidents, congresses, the courts and trio people gives to congresf and to congress alone authority to regulate interstate commerce, and when congress forbids any restraint of such commerce, in any form, -we must obey its mandates. To over reach the action of con- I gross merely by judicial construction, that is. by indirection, is a blow at the integrity of our governmental system and in the end will I prove most dangerous to all' I That is a strong indictment, coming from one of the most vig- I orous intellects of the court itself. No doubt that an attempt on the I part of the supreme court to enter the legislative field and usurp the I prerogatives of congress is a serious , thing, as it tends to make the I 'supreme court the government of the United States. The court of j last resort, on constitutional questions should be the supreme court, in the absence of an expression and mandate from the people themselves, them-selves, but, in matters of legislation, the court should carefully avoid r: even a suspicion of overriding congress by an assumption of the :' right to determine public policy. Justice Harlan reiterates that the court reversed its former rul- 14 ings in the Trans-Missouri cases. , Justice Harlan, referring to other decisions as bearing out his vt ' interpretation of these decisions, calls particular attention to one t of Judge Taft, now President, in the Addison Pipe company case. , fl "Judge Taft said," continued Justice Harlan, "that, accord- i i ing to the decision of this court in the freight association case, con- l tracts in restraint oi! interstate transportation were within the statute whether the restraints could be regarded as reasonable in' common law or not. Onr.qading fjic opinion, just delivered," snid Justice Harlan, "lhV'"first inquiry would be that, as the court is unanimous in holding that tho particular things done by the Standard Oil company and its subsidiary companies in, this case were illegal, under the anti-trust act, whether those things were reasonable or unreasonable restraints of interstate commerce why was it necessary fo make an elaborate argument, as is done in the opinion, to show that, according to the 'rule of reason,' the act passed by Congress; should' be interpreted as if it contained tho word 'unreasonable "or the word 'undfic.' "The only answer which, in frankness, rcan be give?! to this question, ques-tion, is that the court intends to decide tlutf Us deliberate judgment judg-ment fifteen years ago, to the effect Hint the act permitted no restraint re-straint whatever of interstate commerce, whether reasonable or unreasonable, un-reasonable, was not in accordance with the 'rule of reason.' In effect ef-fect the court says that it will now, for the first time, bring the discussion under the Might of reason' and apply the 'rule of reason' to the question td be decided. I have the authority of this court for saying that such a course of proceeding on its part would bo 'judicial legislation.' " Justice Harlan maintains the court should have replied emphatically em-phatically to the Standard Oil lattorneys, when they insisted on a "reversal of the former rulings" of the court, as follows: "That question, according to our practice and view, is not open or further discussion here. This court long ago deliberately held, '(1) that the act, interpreting its words in their ordinary acceptation, prohibits all restraints of interstate commerce by combinations in whatever form and whether reasonable or unreasonable; (2) the question relates to matters of public policy in reference to commerce among the slate anw with foreign nations and congress alone can deal with the subject; (3) this court would encroach on the rights of congress, if, under the guise of construction, it should assume to determine a matter of public policy; (4) the parties must go to congress con-gress and obtain an amendment of the anti-trust act, if they think that this court was wrong in its former decisions; and (5) this court will not judicially legislate, since its functions is to declare law, while it belongs to the legislative department to make the law." Then referring to the phrase which Chief Justice White used in his opinion.-iJustice Harlan adds: "Such a course, I am sure, would not have offended the 'rulo of reason.' " |