Page:Harvard Law Review Volume 32.djvu/264

228 228 HARVARD LAW REVIEW There were some intermediate rimablings, like the intimation that "this power to regulate is not a power to destroy, and limita- tion is not the equivalent of confiscation;" ^ but it was not until 1889 that any regulatory act or system of a state affecting trans- portation Hues was nullified under the due-process clause, or otherwise, for that matter.^^ The court was changing, the tide of litigation rising fast in re- sponse to business demands. Miller and Bradley (soon to be united in death) still disagreed; the former (the better poHtical seer) consenting to coerce the state, only on the far-seeing ground that it was meddHng with interstate commerce; the latter (the better trained lawyer) clinging in dissent to the Granger cases, which he declared to be overruled in principle, — a dictum gen- erally approved, notwithstanding the continued use of them by the Supreme Court, — when convenient. It is from that decision that I date the flood. Justice Bradley was as usual right in intuition; the thought underlying the Granger doctrine was that the law-making power was not only solely em- powered to establish law, but to declare the reasonableness thereof; the departure made in 1889, and settled soon after Bradley's death in the Texas Commission cases,^^ practically arraigned legis- lators at the bar, and passed judgment not, mark you, on the justice or wisdom, but the reason, of what they had done, and "reason" is another of those words as to which inclusion and exclu- sion are more appropriate than definition. It may be added that most men with difiiculty discover reason in that which they firmly believe unjust, unwise and probably dishonest. This, however, was no revolution, except within the court, whose changing personnel soon contained in Justice Brewer a powerful reinforcement to the school of Field, — his near kinsman. For the world at large, all that happened was that the Supreme Court joined hands with most of the appellate tribunals of the older states, and the legis- latures had not only domestic censors, but another far away in Washington, to pass on their handiwork. No state had more influence than New York, and the Wyne- hamer case is especially noteworthy. When vested rights in liquor ^ 116 U. S. 307, 331 (i{ " Chicago, etc. Ry. v. Minnesota, 134 U. S. 418 (1890). !» IS4 U. S. 362 (1894).