Middlebury register. (Middlebury, Vt.) 1886-1937, 1901-06-07
JUSTICES DTSSEN T.
THE CONSTITUTION LIMITS THE
POWER OF CONGRESS.

No Territory Can Belong to the United
States Except Under heProvisions of the
Constitution Justice Harlan Reads His
Opinion.
Mr.. Justice Harlan after concurring in
the dissent of the chief Justice, read an
opinion of his own. He said
II cannot assent to the proposition,
whether it be announced in express
words or by implication, that the nation
al government is a government by states
in union, and that the prohibitions and
limitations of the Constitution are ad-
dressed only to the states. That is but
another form of saying that the govern
ment is mere league of states, held to-
gether by compact between themselves ;
whereas, as this court has often declared,
it Is government created by the people
of the United States, with enumerated
powers and supreme with respect to
certain objects throughout all the
territory over which its jurisdiction ex-
tends. The Constitution by which that
government was created speaks not
simply to the states In their organized
capacities, but to all peoples. whether of
states or territories, who are subjects to
the authority and jurisdiction of the
United States.
81 take leave to say that if the prlnci-
pies now announced should receive the
sanction of majority of this court, the
result will be radical and mischievous
change in our system of government
We will, in that event, pass from the era
of constitutional liberty guarded and
protected by written constitution, into
an era of legislative absolutism, in re-
spect of many rights that are dear to all
people who love freedom.
although from the foundation of the
government this court has held steadily
to the view that the government of the
United States was one of enumerated
powers, and that no one of its branches,
nor all its branches combined, could con-
stitutionally exercise powers not granted,
or which were not necessarily implied
from those expressly granted, we are
now informed that congress possesses
powers outside of the Constitution, and
may deal with new territory, acquired
by treaty or conquest, in the same
manner as other nations have been ac-
customed to act with respect to terri
tories acquired by them. In my opinion
congress has no existence and 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 ter
ritories. This nation is under the con-
troll of written constitution, which is
the supreme law of the land and the only
source of the powers which our govern
ment, or any branch or officer of it, may
exercise at any time or at any place.
Monarchial and .despOtic governments,
unrestrained in their powers by written
constitutions, may do with newly ac-
quired territories what this government
may not do consistently with our funda-
mental law. TO say otherwise Is to con-
cede that congress may, by action taken
outside of the Constitution. engraft upon
our republican institutions colonial
system such as exists under monarchial
governments. That result was never
contemplated by the fathers of the Con-
stitution, and if that instrument had con-
tanned word suggesting the possibility
| of result of that character it would
never have been adopted by the people
of the United States. The idea that this
country may acquire territories any
where upon the earth by conquest or
treaty and hold them as mere colonies or
provinces, the people inhabiting them to
enjoy only such rights as congress chose
to accord to them, is wholly inconsistent
with the spirit and genius as well as
with the words of the Constitution.
1.-The idea prevails with some that We
have here in this country substantially
two governments; one to be maintained
under the Constitution. with all its re-
strictions; the other to be maintained by
congress outside and Independently of
that instrument, and exercising powers
that belong to the other nations of the
earth 1t is one thing to give such a
lattudinarian construction to the Con-