Our Changing ConstitutionPierson, Charles W. (Charles Wheeler)
History
Our Changing Constitution
Pierson, Charles W. (Charles Wheeler)
Constitutional history -- United States; United States -- Politics and government
Few statutes have aroused more discussion or been the subject of more
perplexity and misunderstanding. President Taft's remark, made after the
decisions of the Supreme Court in the Standard Oil and Tobacco Trust
cases,[1] that "the business community now knows or ought to know where
it stands," was received with incredulity approaching derision. Yet from
a lawyer's point of view (and it must be borne in mind that the
President was a lawyer and is now Chief Justice of the Court) the
statement cannot be controverted. The decisions in the Standard Oil and
Tobacco cases did in fact dispel whatever uncertainty remained as to
what the Sherman Act means.
[Footnote 1: _Standard Oil Co. v. United States_, 221 U.S., 1.
_United States v. American Tobacco Co._, id., 106.]
The Sherman Act[1] declares unlawful every contract, combination, or
conspiracy in restraint of interstate trade, and every attempt to
monopolize interstate trade. The legal uncertainties that have arisen in
its enforcement have not been with respect to the meaning of the terms
"restraint of trade" and "monopoly," although the popular impression is
to the contrary. In 1890, when the statute was passed, contracts in
restraint of trade and monopolies were already unlawful at common law,
and these terms, by a long series of decisions both here and in England,
had been defined as definitely as the nature of the subject matter
permitted. While incapable (like the term "fraud") of precise definition
covering all forms which the ingenuity of man might devise, nevertheless
their meaning and scope were well within the understanding of any man of
reasonable intelligence. Whatever legal uncertainties have arisen have
been chiefly owing to two questions: first, What is _interstate_ trade
within the meaning of the act? and second, Did the act enlarge the
common-law rule as to what restraints were unlawful?
[Footnote 1: "An Act to protect trade and commerce against unlawful
restraints and monopolies," approved July 2, 1890.]
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