cy involved no contradiction. It was only a progression in
thought. For, he continued, the judges who, on various previous
occasions, sustained that general principle, must have reached their
conclusions by the light of reason; to-day we reach a contrary
conclusion, but we also do so by the light of reason; therefore, as all
these decisions are guided by the light of reason they fundamentally
coincide, however much superficially they may seem to differ.[36]

I have never supposed that this argument carried complete conviction
either to the legal profession, to the public, or to Congress.
Certainly, it did not convince Mr. Justice Harlan, who failed to fathom
it, and bluntly expressed his astonishment in a dissenting opinion in
another cause from which I regret to say I can only quote a couple of
paragraphs, although the whole deserves attentive perusal:--

"If I do not misapprehend the opinion just delivered, the Court insists
that what was said in the opinion in the Standard Oil Case, was in
accordance with our previous decisions in the Trans-Missouri and Joint
Traffic Cases, ... if we resort to _reason_. This statement surprises me
quite as much as would a statement that black was white or white was
black."

"But now the Court, in accordance with what it denominates the 'rule of
reason,' in effect inserts in the act the word 'undue,' which means the
same as 'unreasonable,' and thereby makes Congress say what it did not
say.... And what, since the passage of the act, it has explicitly
refused to say.... In short, the Court now, by judicial legislation, in
effect, amends an Act of Congress relating to a subject over which that
department of the Government has exclusive cognizance."[37]

The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly
comprehensible, if we reflect a little on the conflict of forces
involved, and on the path of least resistance open to an American judge
seeking to find for this conflict, a resultant. The regulation or the
domination of monopoly was an issue going to the foundation of society,
and popular and financial energy had come into violent impact in regard
to the control of prices. Popular energy found vent through Congress,
while the financiers, as financiers always have and always will, took
shelter behind the courts. Congress, in 1890, passed a statute to
constrain monopolies, against which financiers protested as being a
species of confiscation, and which the Chief J