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The Green Bag

dent Harrison had promoted him to the

Supreme Court, and President Cleve

example, in the separate but concurring opinion he wrote in the Northern Securi

land had selected him as a member of

ties case, where he maintained that the

the Venezuelan Boundary Commission. On the supreme bench he was a tower

Sherman act prohibited only contracts or combinations in unreasonable re straint of trade. It was also shown in his decision, as a federal Circuit Judge,

of strength and was regarded as one of

the ablest jurists in that body. His decisions were among the most important

that a brewer of Lawrence, Kansas, could

handed down by the Supreme Court. He was universally regarded as possess

not be deprived of the use of his prop

ing, along with a highly judicial temper,

compensation, a decision which was subsequently reversed (in 1887) by the

the clear mind and the broad learning of the great judge in questions of con stitutional law. In temperament Justice Brewer was a

type of the wholesome Americanism which

is schooled

by a

broadening

experience to cast aside provincial limi tations and to deal with all matters in a large, broad-minded way.

erty by the state of Kansas without

Supreme Court of the United States, but the reasoning of which he ﬁrmly re

asserted afterward. But he was not an individualist in the sense of holding that private can override public rights, as was shown by his ruling in the Debs

case, which established the right of the

perhaps be described as a mellow blend

federal courts to restrain the obstruction of trains engaged in interstate commerce or carrying the mails. Nor was he an individualist in the sense of advocating any diminution of that control which the law exercises over the individual by means of the injunction. He said: “Un less the law is to place itself out of har

of the over-ripeness of the East and the

mony with the advancing civilization,

under-ripeness of the West.

He did not

the right to prevent wrong should have an

stand for anything extreme, but always

enlarged rather than a restricted scope.”

exhibited a healthy moderation of views.

have lately shown themselves on the

Again, as regards his opposition to centralizing tendencies, he was a “strict constructionist" in that he continally laid stress on the Tenth Amendment, reserving to the states all powers not expressly delegated to the nation, and in

bench, it must be admitted that he did not go so far in the opposite direction as

that he opposed a federal income tax. But he was not a “strict constructionist”

to lay himself open to the charge of being hide-bound or re-actionary.

tion that the states of the American Union

While a Western man, who had spent much of his life in Kansas, he had many close associations in New England, hav

ing a summer home on Lake Champlain, and being a graduate of Yale, of the class of 1856. His temperament might

For this reason, any attempt to class him as an individualist, or as a “strict

constructionist,” is possibly ill-advised. If he opposed certain tendencies which

He was an individualist in the sense that he cherished the very moderate view that only serious considerations of public policy can justify any interference with the security of property and the freedom of contract guaranteed by our fundamental law. This was shown, for

in the sense that he disavowed the posi form a nation, as distinguished from a mere league of independent states. Fortunately, however, his successor,

Mr. Justice Hughes, is likely to be not less distinguished for moral earnestness. judicial

vigor.

moderation,

and

intellectual