JUSTICE HARLEN POINTS OUT DANGERS IN STANDARD OIL DECISION
Justice Harlan Points Out Dangers in Standard Oil Decision By declaring that each case of alleged violation of the Sherman Anti-Trust Law must be decided in the "bight of reason," the Supreme...
...If you will take the trouble to look through the Federal Reporter you will find that possibly nearly every Federal court in this country has accepted those original decisions as the final decision of this court as to the meaning of the act of Congress...
...and Congress had before it the great question as to how these evils were to be remedied, so far as Congress had the power to remedy them...
...That it strikes me, is mischievous, and that is the part of the opinion that I especially object to...
...1FEEL CONSTRAINED by a sense of duty to state some objections which I have to the opinion of the court, which I have heretofore examined in typewriting...
...As to the modifications referred to by the learned judge, when I see the opinion and the decree in print, I can understand it better...
...Then, in the second section: "Every person who shall monopolize or combine or conspire with any other person or persons to monopolize"—-Monopolize what...
...The Court, in the opinion in this case, says that this act of Congress means and embraces ONLY UNREASONABLE restraint of trade—in flat contradiction to what this court has said fiftefn years ago that congress intended...
...Therefore, Congress said to all the people of this country: "We are not going to bother the courts or ourselves with any inquiries as to what contracts are in restraint of trade, reasonably or unreasonably...
...The railroads in that case had come to make an agreement about rates, and the question was whether or not that agreement was in violation of the Anti-Trust law of 1890...
...We will determine it as a part of the policy of the United States that, so far as interstate trade is concerned, no body or corporation shall make or attempt to enforce a contract, any contract, that in any degree restrains interstate trade...
...What becomes, then, of the statement that this act did not condemn monopoly in itself...
...They finally, after great debate by able statesmen, passed the Anti-Trust act of 1890...
...But Congress said: "The surest way to protect interstate commerce is not to start upon any distinction at all as to the kinds of trade, so 'every' contract in restraint of trade among the states is hereby declared to be illegal...
...Justice Harlan then cited the Trans-Missouri case which was before the Supreme Court in 1896, fifteen years ago...
...That has not been our practice...
...I shall put my views in writing hereafter, when I get an opportunity to do so...
...I shall not say anything about the decree, except to say that upon hearing the arguments on this act some years ago, and also my examination of this case, I came to the conclusion that the decree of the Circuit Court was substantially right in all particulars...
...Justice Harlan Points Out Dangers in Standard Oil Decision By declaring that each case of alleged violation of the Sherman Anti-Trust Law must be decided in the "bight of reason," the Supreme Court has given cause for alarm...
...It is a lawful restraint...
...What occurred next...
...This court having three times heard this question argued and reached a conclusion, there was nothing left for them but to go to Congress and get the Sherman Act amended, * * * everybody knows that there has not been a session of Congress since 1896, when that original opinion was delivered, but that somebody, taking the opposite view from what the court has said, has not applied to Congress to get that law amended...
...That is not all: "Every contract, combination in form of trust or otherwise, or conspiracy in restraint of trade or commerce among the states, is hereby declared illegal...
...That being the state of the law, what was to happen...
...The Court refused to reverse the position it tooK in the Trans-Missouri case...
...Said the court, "As we have twice already deliberated and earnestly considered the same arguments which are now for a third time pressed upon your attention, it would hardly be expected that our opinion should now change from that carefully expressed...
...Congress has nothing to do with domestic trade in the states, but as to interstate trade it has a great deal to do, and therefore it fell upon this policy...
...Something to Alarm Thoughtful Men THERE ARE, however, some things in this opinion, and that are to result from this opinion, which I think may very well alarm thouhtful men, or many thoughtful men...
...And Justice Harlan points out that "no view IS NOW pressed upon the court, either in the opinion of the majority or in the arguments of counsel, that was not brought to the attention of the court in the two cases, one decided in 1896 and the other in 1898...
...Now we are asked to change the rule, and to say: "It may be true that in the words of the statute this contract or this agreement is in restraint of interstate trade...
...Let me call your attention to a few of the words of that act...
...and I am unwilling to let them pass with any idea that I approve them...
...The question in that case was whether or not a certain traffic agreement was in violation of the Anti-Trust law...
...and in the opinion which I am hereafter to file I can express my views distinctly as to those modifications...
...What Congress Declared THE MEN who were in the Congress of the United States at that time knew what the common law was about the restraint of trade...
...The question was: "What shall we do...
...It was denied...
...but IT NEVER HAS BEEN AMENDED, and there is not a man in the country today who does not know that it never will be amended by the Congress of the United States to mean what they wanted Congress to have it mean...
...We are not going to leave that to any jury...
...It provides in section 1: "That every contract, combination in form of trust or otherwise, or conspiracy"— Not in restraint of trade, as the learned Chief Justice said in one part of his remarks, but— "—* * * in restraint of trade among the several states and with foreign nations is hereby declared to be illegal...
...Any part of interstate trade or commerce shall be liable to the penalties prescribed by this act...
...The Anti-Trust act of 1890 was passed at a time when this country was in a state of great unrest, arising out of an enormous aggregation of capital in a few hands, and arising out of combinations which had their hands upon the throat of this country in respect even to the necessities of life...
...A rehearing was asked...
...We are not going to leave that to any Circuit Judge...
...And the court's judgment was that ALL contracts that restrain at all among the states are prohibited by this statute—not merely "unreasonable" contracts, but ALL...
...Did not these men know what a monopoly was...
...But it is a lawful restraint of trade...
...Can anybody doubt the meaning of those words...
...As to all the Chief Justice has said about the illegal combination, of this oil company and its coming within the Anti-Trust act, I cordially concur...
...Look at this step by step, and I shall get, directly, to the part of this opinion that I say may well alarm the eountry, notwithstanding the many good things that are in it, magnificently said...
...And when Congress said that we will punish any man that monopolizes or attempts to monopolize any part of interstate commerce, did it not know what it intended...
...Eminent counsel were present to instruct the court...
...Why, there was nothing left to them...
...If you say two and two make four, you would not make it any plainer than these words make out the intention of Congress...
...There is much more that I wanted to say, but I cared only to emphasize that objection to the opiniox of the court...
...The Most Alarming Tendency IN THE NOW not very short life that I have passed in this capital and the public service of the country, THE MOST ALARMING TENDENCY OP THIS DAY, in my judgment, SO FAR AS THE SAFETY AND INTEGRITY OF OUR INSTITUTIONS ARE CONCERNED, IS the tendency 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 legislation 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...
...And the court added: "When, therefore, the body of the act pronounces as illegal every contract or combination in restraint among the several states, the plain and ordinary meaning of such language is not limited to that kind of contract alone which is in UNREASONABLE restraint of trade, but ALL the contracts are included in such language, and no exceptions or limitations can be added WITHOUT PLACING IN THE ACT THAT WHICH HAS BEEN OMITTED BY CONGRESS...
...It may be...
...CONTRARY TO THE DECISION OF THIS COURT, I say —contrary to the practice and usages of this court...
...PRACTICALLY THE DECISION TODAY—I do net mean the judgment but parts of the opinions—ARE TO THE EFFECT PRACTICALLY THAT THE COURTS MAY...
...They knew what restraints of trade at common law were lawful, and what were unlawful...
...What were these gentlemen to do...
...BY MERE JUDICIAL CONSTRUCTION, AMEND THE CONSTITUTION OF THE UNITED STATES OR AN ACT OF CONGRESS...
...Two years later the Joint Traffic ease came before the Supreme Court...
Vol. 3 • May 1911 • No. 21
