Valentine Democrat. (Valentine, Neb.) 1900-1930, 1901-06-20

said-"The states could only delegate
to congress such powers as they them
selves possess, and as they have no
power to acquire new territory they
have none to delegate in that connec-
tion." This was Justice Browns apol-
ogy for the absence from the constitu-
ton of q delegation of power to con-
gress to deal with newly acquired ter
ritory. He would then hold that con-
gress, the creature of the constitution,
had greater powers than the body that
created the constitution itself. In or
der to avoid the we'll established the
DRY that the constitution is a grant of
power, we have, according to Justice
Browns opinion, only to ascertain that
the grantors of power were without
authority in a certain respect in order
to give to the creatures of the constitu-
ton whatever authority and power
those creatures see fit to exercise.
A RADICAL CHANGE.
Justice Harlan discusses this point
at considerable length, and his words
are quoted here that the reader may
note the contrast between his views
and those expressed by the majority OF
the court through Justice Brown. JUS
tice Harlan says:
81 take leave to say that II the
principles now announced should ever
receive the sanction of a majority OF
this court, the result will be a radical
and mischievous change in our system
Of government. We will, in that event,
pass from the era of constitutional lib
erty, guarded and protected by a writ
ten constitution, into an era of leglsla-
tive absolutism, in respect OF many
rights that are dear to all peoples who
love freedom.
"In my opinion, congress has NO ex-
istence and can exercise no authority
outside of the constitution. Still less
is it true that congress can deal with
new territories just as other nations
have done or may do with their new
territories. This nation is under the
control of a written constitution, which
is the supreme law of the land, and the
only source of the powers which our
government, or any branch or officer
Of it, may exercise at any time or at
any place. Monarchical and despotic
governments, unrestrained in their
powers by written constitutions, may
do with newly acquired territories
what this government may not do con-
sistently with our fundamental law.
"The idea that this country may &C
quire territory anywhere upon the
earth, by conquest or treaty, and hold
them as mere colonies or provinces, is
wholly inconsistent with the spirit and
genius as well as with the words of the
constitution. The glory of our Amer
lean system of government is that it
waE Nrnafnd nv O Wrifton constitution
which protects the people against the
exercise of arbitrary, unlimited power,
and the limits of which may not be
passed by the government it created,
or by any branch of it, or even by the
people who ordained it, except by
amendment.
at will be an evil day for American
liberty If the theory of a government
outside of the supreme law of the land
finds lodgment in our constitutional
Jurisprudence"
THE AMERICAN EMPIRE.
The courts decision was based upon
expediency. In the opinion to which
Justice Harlan referred as an effort to
establish two governments in this
country-one resting on the constitu-
ton for Americans-the other carried
on in the national capital by the same
people, without the constitution for a
subject people," Justice Brown said
GA false step at this time might be
fatal to the development of what Chief
Justice Marshall called the American
empire"
It would seem that this phrase was
employed by way of apology or de-
tense for the American empire which
Justice Brown and his colleagues were
seeking to erect upon the ruins OF the
American constitution. When the
great Marshall used the term "the Am
erican empire" he referred to an en-
pire Of love, an empire of perfect re-
~publicanism, an empire of hearts, an
empire in which the people reigned SUI
preme and the congress-, the executive
and the courts were the servants, rath-
er than the masters, of the people. He
referred to "the American empire" as
expressing the perfect reign Of Ameri-
can principles on every foot of Ameri-
can territory, and the enjoyment of
American rights, privileges, and i'm
munities on every foot Of soil within
the American domain.
1t was in 1920 that Chief Justice
Marshall used this term. The court
at that time had under consideration
the constitutional provision that "all
duties, imports and excuses shall be
uniform throughout the United States"
On this point Chief Justice Marshall
said-"Does this term (the United
States) designate the whole Or any por-
ton of the American empire? Ger
tainly this question can admit of but
one answer. 1t is the name given to
our great republic which is composed
of states and territories. The District
Of Columbia or the territory west of
the Missouri river is not less within
the United States than Maryland or
Pennsylvania and it is not less neces-
sary on the principles of our constitu-
ton that uniformity in the imposition
of imposts, duties and excuses should
be observed in the n than in the
other"
What a difference, then, between
''the American empire" Of the great
Marshall and the American empire of
Mr.. Justice Brown!
Marshall's American empire" was
'tour great republic which is composed
of states and territories" The Ameri-
can empire of Mr.. Justice Brown con-
templates two governments in this
country. one resting on thp cOnStitu-