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23 U. Chi. L. Rev. 221 (1955-1956)
Congress and the Sherman Antitrust Law: 1887-1890

handle is hein.journals/uclr23 and id is 229 raw text is: CONGRESS AND THE SHERMAN ANTITRUST LAW: 1887-1890 W=Aaxt L. LETwINt THE DECEPTIVE simplicity of the Sherman Act' has led many his- torians to believe that the intention of Congress was equally simple. Although they have not agreed on what the intention was, these historians have shared the view that the motives of Congress were elementary and unmixed and have differed chiefly over whether Congress was sincere. Some suppose that the congressmen of 1890 were committed to a policy of laissez-faire, interpret that policy as a dogmatic faith in competition, and regard the Sherman Act as an effort to enforce that orthodoxy.2 Others less trustful maintain that the Act was a fraud, contrived to soothe the public without injuring the trusts, and they insist that no other result was possible because the Republican Party, in control of the 51st Congress, was itself dominated at the time by many of the very industrial magnates most vul- nerable to real antitrust legislation.3 Both these schools can draw support from distinguished men who lived while the Act was being passed.4 But the process by which laws are made in the American democracy is not so direct and obvious. Congress does not merely enact its private dogmas, nor does it simply supply whatever the people order. Public opinion is not so precise. Far from demanding a particular law, the public desires at most a certain kind of law, and more often only wants to be rid of a general evil. Sometimes, indeed, public opinion is practically silent and yet effective, for Congress often refuses to pass laws because it expects that the public would object, or adopts them anticipating that the public will approve. Congress is t- Research Associate, University of Chicago Law School. '26 Stat. 209 (1890), 15 U.S.C.A. S 1 (1951). 2 This view is taken, for instance, by the authoritative text, Seager and Gulick, Trust and Corporation Problems 373 (1929). See also, Mund, Government and Business 145, 146, 150 (1950). Fainsod and Gordon, Government and the American Economy 450 (1941). Cochran and Miller, The Age of Enterprise 171-2 (1942). See also, Papandreou and Wheeler, Com- petition and Its Regulation 213 (1954) in which the Sherman Act is described as a measure of appeasement. ' Senator Platt said that his colleagues were interested in only one thing, to get some bill headed: 'A Bill to Punish Trusts' with which to go to the country. Coolidge, An Old- Fashioned Senator: Orville H. Platt 444 (1910). Justice Holmes thought that the Act was a humbug based on economic ignorance and incompetence. I Holmes-Pollock Letters 163 (Howe ed., 1941).

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