266
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
