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"THE GREAT AMERICAN EXPERIMENT."
Judge Sanborn, as a circuit judge, in the spring of 1911, rendered a decision enjoining the enforcement of certain orders made by the Minnesota Railroad & Warehouse Commission. During the past fifty years there have been many orders of federal courts sustaining and enjoying orders made by state authorities, but none of these have commanded the nation-wide consideration following that decision.
The decision by Judge Sanborn occasioned the railroad commissions of eight sister states, having seventy "similar cases pending in the federal courts involving precisely the same issues, to file a brief with the Supreme Court as amici curiae, opposing the doctrine he announced. This action was later unanimously endorsed at a representative gathering of thirty state railroad commissions, in their annual convention at Washington, D. C.
After the railroad commissions had determined to file a brief and argument against the doctrine announced by Sanborn, the governors, at their national convention, unanimously agreed upon a similar action. Finally, the federal government through the attorney general of the United States, filed a brief opposed to the positions taken by the governors and railroad commissions of the various states. Perhaps never before in the history of the United States, has any case called forth such an array of briefs and arguments from the various departments of the state and national governments.
The Minnesota Rate Case will probably take rank as one of the great legal contests of the present generation. The decision of the Supreme Court of the United States reversing Judge Sanborn of the lower federal court, brought into issue the whole subject of the relative functions of state and nation in our scheme of government, as applied to the commercial affairs of the country. It focused attention for the moment, on the wisdom of our American plan of dual government.
The Supreme Court refused to decide the real issue that the public had under consideration at the time. The Court said that the question as to whether federal regulation of commerce shall supplant state regulation is not a question for the judiciary to determine; it is legislative and not judicial in character. The contest was thereby transferred from the court room to the halls of Congress. It now becomes, not a question of precedent or of statute, but one of expediency, of wisdom.
Since that decision a movement has been gradually inaugurated throughout the nation, loking toward the elimination of state regulation of commerce. This is reflected in speeches, magazine articles and books.
It is probably safe to say that not since the Civil War has this question of the relative rights and functions of state and national governments commanded such widespread consideration as during the past few years.
The issues of today again concern vast property interests. The rights of railroads, express companies, telegraph, telephone and other public service corporations, as well as many huge industrials, the rights of shippers, producers and consumers, and the future policies of state and nation on many grave questions of business are vitally concerned.
Shall we proceed as rapidly as possible to eliminate state government from our commercial life?
For several years there has been gradually developing in the country a sentiment in favor of wiping out state lines. An agitation, partly spontaneous and partly inspired by interested persons, has been carried on to support a change in the trend of our judicial decisions relative to the powers of a state to regulate business. There is absolutely nothing new about the doctrine that an order by state authorities is unconstitutional when it interferes with, and places a direct burden upon, interstate commerce. That principle is old; it has been well settled for over a half century. It is now vigorously claimed that the time has arrived for the practical abolition of all state regulation. This thought has permeated the minds of some of our ablest leaders. Such a change in the American plan of government would be of stupendous importance.
Let us pause a few moments and carefully weigh the wisdom of this dual system, or federal plan.
We are on the eve of another struggle for party supremacy. The birth and death of political parties are intensely dramatic and interesting; but, at the most, parties are only temporary things. Our form of government is of far greater consequences; it has outlived and will outlive hundreds of brilliant leaders and many great political parties. Its creation was, and its change will be, a news item of the centuries.
Is state regulation worth preserving? You may start with this premise: Within the next twenty-five years substantially all our commercial affairs will be carried on by companies doing both state and interstate business. What is well for railroads will be good for others. Shall we abandon our state governments, so far as the regulation of business is concerned? Here is an issue which strikes at fundamentals; which has to do with the method of government.
In striving after the new, we frequently fail to realize the intrinsic value of the old. Let us consider a few of the reasons justifying this federal plan or dual form of regulation, which contemplates both a centralized governing power and also state regulation.
It is true that our constitution in many respects was a compromise, the creation of circumstances. The different 'colonies were loath to yield up any of their powers. Hamilton fought vigorously for a strong national government. In those days much fear prevailed that we might have too loose a central government. Statesmen of that and succeeding periods were profoundly concerned over this problem. Marshall, on the Supreme Bench, became the chief instrument in cementing the national character of our government.
However, it is a gross mistake to imagine that the jeal-' ousy among rival states was the sole cause for limiting the powers of the central government. There existed among the framers of our constitution, entirely independent of any compromise as to the rights of rival states, a deep-seated conviction that a federal government composed of several states retaining large jurisdiction, was far preferable to a strong centralized government. This is evidenced by the recorded discussions of that day. Here was a question, not of state's rights, but of expediency, of wise government. This purpose or intent in their minds was reflected in the constitution which they drafted.
One whose writings inspired much of the thought of that time was Rousseau; his "Contrat Social" became a standard text book for the makers of government of those days. In this work Rousseau stated: "As nature has set limits to the stature of a properly formed man, outside which it produces only giants and dwarfs; so likewise, with regard to the best constitution of a state, there are limits to its possible extent so that it may be neither too great to enable it to be well governed, nor too small to enable it to maintain itself single-handed. There is in every body politic a maximum of force which it cannot exceed, and which is often diminished as the state is aggrandized. The more the social bond is extended, the more it is weakened; and, in general, a small state is proportionally stronger than a large one. A thousand reasons demonstrate the truth of this maxim. In the first place, administration becomes more difficult at great distances, as a weight becomes heavier at. the end of a longer lever. . . . The same laws cannot be suitable to so many different provinces, which have different customs and different climates, and cannot tolerate the same form of government. . . . The chiefs, overwhelmed with business, see nothing themselves; clerks rule the state. In a word, the measures that must be taken to maintain the general authority, which so many officers at a distance wish to evade or impose upon, absorb all the public attention; no regard for the welfare of the people remains, and scarcely any for their defense in time of need; and thus a body too huge for its constitution sinks and perishes, crashed by its own weight."
There is much truth well stated in the foregoing sentences. It is quite evident, however, that Rousseau had not realized the full possibilities of the federal plan of government, as worked out in America, whereby the advantages of intelligent, efficient, local home rule and the large empire, compelling respect, are combined into one whole. It is this combination, this federated co-operative plan which is the distinguishing feature of the American constitution.
From the earliest records we learn that men have always been seeking for some form of government which would come close to the life and thought of the average man, which would keep in close touch with the progress of business and social life, and at the same time be large and strong enough to keep peace at home and abroad. Powerful centralized governments, or innumerable small principalities, have been common. There seems to be an inevitable tendency for a government either to fall to pieces, or to gravitate into a strong centralized domineering power.
What is the fundamental characteristics of our government, which distinguishes it from all others preceding ours? It is not the republican idea of government, for the world has seen many republics. It is not the formation of a large empire, for there have been larger. It is the creation of a nation, large and strong enough to assert its independence