14
The Commoner.
VOLUME 11, NUMBER 21
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John Marshall Harlan-a Just Judge
The Philadelphia North American,
a ropiiblican nowspapor, prints tlio
following romarkablo and tlmoly
odltorlal:
Half a century ago, "In tho wild
year of tho chango of things," a
young man's soul was tested by fire.
Tho man of loss than thirty had no
such easy problom as confronted
Americans of his ago In tho northorn
states. John Marshall Harlan was
n Kontucklan a scion of a pioneer
'family in tho border stato that in
politics as in war always had been
"tho dark and bloody ground" that
tho Indians christened long before
Boono blaze "the wlldornoss trail."
A huairei Influences coaxed Har
lan toward espousal of the causo of
8oc6Stoa, tk very Motives that ap
ipoal Mst stragry to a young man.
UniO BOAtiMMt was confined al
most exclusive to tho "poor
whites," tho illiterate mountaineers.
With raro except! men of tho Har
lan casto wore ardent advocates of
tho southern cause.
To go with tho aorth meant more
I
than money loss and tho probable
renunciation of all hopo for a pro
fessional career. It meant social
ostracism, forfeiture of close friend
ships and the bearing of tho stigma
"ronegade."
But John Marshall Harlan never
hesitated. One influence dominated
his action then as it has ruled every
later thought and deed in his long
lifo. Ho had no hatred for the slave
holders. Love for his natal state
was deep-rooted in his nature. But
ho was a union man. And his love
for his country, for tho past and
futuro of the nation of the great
experiment of freedom and human
rights, was deeper and stronger than
any personal or political tie.
As tho years passed and this
scholar and jurist ripened in broad
knowlegde of history and all world
movements, that early devotion to
tho principles of individual liberty
and right of equal opportunity upon
which this republic is founded, and
only by perpetuation of which it can
survive, became more and more the
intellectual passion of Harlan jus
tice and patriot.
This was the man who would have
been Judaa to his sacred civic creed
and inconsistent coward for tho first
tlmo in his life had he not last Mon
day afternoon become the chief ac
tor in the most dramatic and unpre
cedented scene over Btaged in the
supremo court of the United States.
For nearly a quarter of a century
Justice Harlan has been the chief
stalwart opponent in the nation's
tribunal of last resort of monopolis
tic wealth which unremittingly has
fought for governmental recognition
of what forces of special privilege
term euphemistically "reasonable"
monopoly.
Steadfastly he has stood for the
truth that the fundamental function
of this government has ever been and
must be tho safeguarding of the
citizens' industrial and political
liberty and all human rights endan
gered by any form of privilege or
tyranny.
In the fullness of wisdom he
knows that any government which
permits any individual or group to
monopolize in any degree, the neces
sities of all the people establishes a'
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principle and practice that, If un
checked, inevitably must lead that
nation into beggary and bondage and
later into bloody revolution.
Yet it was the fate of this great
lover of the republic to sit on Mon
day and hear the court, whose honor
and dignity he reverences, deliver a
decision that, behind the mask of
declaration of the criminality of a
single corporation, nullified the
American people's only statutory de
fense against monopolies; usurped
the functions of congress and tho
executive; read arbitrarily into the
plain, clear language of a law sus
tained repeatedly and explicitly by
this very court darkening, cheating,
elusive words foreign to the Intent of
the framers of the law and through
out twenty years rejected as amend
ments by the only constitutional law
making body of the nation.
Small wonder that when the voice
of the chief justice ceased its eulogy
of judicial legislation and "the light
of reason" the bonfire of the Sher
man law around which every crimi
nal of cunning in the land dances in
jubilation every muscle in Harlan's
massive frame grew tense, his kindly
face hardened into sternness and his
voice trembled with the depth of a
just man's righteous wrath as, with
out written preparation or a single
note in hand, he uttered the most
stinging, irrefutable censure of an
action by the supreme court ever
heard in that chamber:
"If the act ought to read as con
tended for by defendants, congress is
the body to amend it, and not this
court, by a process of judicial legis
lation wholly unjustifiable
"The public policy of the govern
ment is to be found in its statutes,
and when they have not directly
spoken, then in the decisions of the
courts and the constant practice of
the government officials; but when
the lawmaking power speaks upon
a particular subject over which it
has constitutional power to legislate,
the public policy in such case is what
the statute enacts.
"Practically the decision today I
do not mean the judgment, but parts
of the opinion is to the effect, prac
tically, that the courts may, by mere
judicial construction, amend the con
stitution of the United States or an
act of congress. That, it strikes me,
is mischievous; and that is the part
of the opinion that I especially ob
ject to.
"In the now not a very short life
that I have passed in this canital
and the public service of the coun
try, the most alarming tendency of
this day in my judgment, so far as
the safety and integrity of our insti
tutions are concerned, is the ten
dency to judicial legislation, so that,
when men having vast interests are
concerned, and they cannot get the
law-making power of the (country
which controls It to pass the legisla
tion they desire, the next "thing they
do is to raise the question in some
case, to get the court to so construe
the constitution or the statutes as
to mean what they want it to mean.
That has not been our practice.
"The court, in the oninion in this
case, says that this act of congress
means and embraces only unreason
able restraint of trade in flat contra
diction to what this court has said
fifteen years ago that congress did
not intend.
"Within the last hour an opinio
has been handed down for this court
today, in which, in a case arising
under the safety appliance act, It
was said that such and such was the
safety appliance act, such and erach
was its meaning; that this court has
so declared It In a case decided four
or five years ago. Now, we said;
In reply to that: '
" 'If the court erred In the former
case, it is open for-the parties to
apply for such an amendment of the
fif
