roposed restoration of competition, is just as foolish as if we should
go back to the flintlocks of Washington's Continentals as a
substitute for modern weapons of precision. The effort to prohibit all
combinations, good or bad, is bound to fail, and ought to fail; when
made, it merely means that some of the worst combinations are not
checked and that honest business is checked. Our purpose should be, not
to strangle business as an incident of strangling combinations, but to
regulate big corporations in thoroughgoing and effective fashion, so as
to help legitimate business as an incident to thoroughly and completely
safeguarding the interests of the people as a whole. Against all such
increase of Government regulation the argument is raised that it
would amount to a form of Socialism. This argument is familiar; it is
precisely the same as that which was raised against the creation of
the Inter-State Commerce Commission, and of all the different utilities
commissions in the different States, as I myself saw, thirty years
ago, when I was a legislator at Albany, and these questions came up
in connection with our State Government. Nor can action be effectively
taken by any one State. Congress alone has power under the Constitution
effectively and thoroughly and at all points to deal with inter-State
commerce, and where Congress, as it should do, provides laws that
will give the Nation full jurisdiction over the whole field, then that
jurisdiction becomes, of necessity, exclusive--although until Congress
does act affirmatively and thoroughly it is idle to expect that the
States will or ought to rest content with non-action on the part of both
Federal and State authorities. This statement, by the way, applies also
to the question of "usurpation" by any one branch of our Government
of the rights of another branch. It is contended that in these recent
decisions the Supreme Court legislated; so it did; and it had to;
because Congress had signally failed to do its duty by legislating.
For the Supreme Court to nullify an act of the Legislature as
unconstitutional except on the clearest grounds is usurpation; to
interpret such an act in an obviously wrong sense is usurpation; but
where the legislative body persistently leaves open a field which it
is absolutely imperative, from the public standpoint, to fill, then no
possible blame attaches to the official or officials who step in because
they have to, and who then do the needed work