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receive its inhabitants and what their status
shall bo in what Chief Justice Marshall termed
'The American empire.' "
.Justice Brown then distinctly declared that
the annexation of territory did not make the
inhabitants of that territory citizens of the
United States. Ho admitted, however, that
whatever may be finally decided as to the
status of these islands and their inhabitants "it
does not follow that in the meantime the people
are in the matter of public rights unprotected
by the provisions of our constitution and sub
jected to the mcro arbitrary control of con
gress. Even, if regarded as aliens, they arc en
titled, under the principles of the constitution,
to be protected in life, liberty and property."
Here we find the supreme court's declara
tion of the status of the people of these is
lands. Although the constitution does not fol
low the flag, "under the principles of the con
stitution" the people of our new possessions
arc cntited "to bo protected in life, liberty and
property." In other words although cut away
from all former allegiance, although taken
away from former sovereigns and denied the
right of building a sovereignty for themselves,
and although required to render allegiance to
this country, yet they arc in the attitude of "al
iens," they arc to be taxed without representa
tion, and to be governed without having a
voice in the government. This is imperialism
pure and simple. -....
Throughout the majority opinion delivered
by - Justico Brown runs the theory that the
American congress may do
Delegated anything not forbidden in the
Powers. . constitution. This is one of
the most repugnant features of
this opinion. Justice Brown seems to have
searched the constitution for prohibitions rather
than for that grant of power which the Araeri
can people have always conceived to be the
, true oflice of that instrument. In one place
Justice Brown said: "If in limiting the power
which congress was to exercise within the
United States, it was also intended to limit it
with regard to such territories as the people -of
the United States should thereafter, acquire,
such limitations should have been expressed."
In another place he refers to a constitutional
clause as "suggestive of no limitations upon
the power of congress in dealing with territor
ies.'" In another place he says that "no con
struction of the constitution should bo adopted
which would prevent congress from consider
ing each case upon its merits unless the lan
guage of the instrument imperatively demands
it." And in his conclusion Justico Brown, re
ferring to tho right or authority of congress to
do what ever it sees fit to do, said "We de
cline to hold that there is anything in the con
stitution to forbid such action."
The American system of government is not
a complicated one. Indeed, its strength and
success have depended, in a marked degree,
upon its very simplicity. For years wo have
been taught to look in the constitution for pow
ers delegated to tho United States and for
powers prohibited hj tho constitution to tho
iuiwh. xi or years wo have been taught that
The Commoner
the federal constitution was a grant of power,
while the state constitution was a limitation of
power; yet the opinion delivered by Mr. Jus
tico Brown encourages tho notion that our fed
eral authorities may do whatever they think
necessary to be done when the same is not spe
cifically iorbidden in tho federal constitution.
Tho dangers arising from such an irrational,
un-American notion will depend entirely upon
the character and disposition of men in author
ity. A written constitution has been the safe
guard of American institutions, and once it
shall be fully established that that constitution
is a limitation rather than a grant of power,
this government and its people are completely
at the mei cy of the men who happen to be in
.authority.
The mischievous character of Justico
Brown's decision on this point is indicated in
one paragraph wherein ho said "The states
could only delegate to congress such powers as
they themselves possess, and as they have no
power to acquire new territory they have none
to delegate in that connection." This was Jus
tice Brown's apology for the absence from the
constitution of a delegation of power to con
gress to deal with newly acquired territory.
He would then hold that Congress, the creature
of the constitution, had greater powers than
the body that created the constitution itself.
In order to, avoid the well established theory
that the constitution, is a grant of jpower? wo
have, according to justico Brown's opinion,
only to ascertain that the grantors of power
were without authority jn a certain respect in
order to give to the creatures of the constitu
tion whatever authority and power those creat
ures see fit to exercise.
preme law of the land finds lodgment In our con
stitutional jurisprudence."
Justice Harlan discusses this point at con
siderable length, and his words are quoted here
that the reader may note the .
A Radical contrast between his views and
Change. . those expressed by the major
ity of the court through Justice
Brown. Justice Harlan Bays:
"I take leave to say that if the principles now
announced should ever receive the sanction of a
majority of this court, tho result will be a radical
and mischievous change In our system of govern
ment. We will, in that event, pass from the era
of constitutional liberty, guarded and protected by
a written constitution, into an era of legislative
obsolutism, in respect of many rights that are dear
to all peoples who love freedom.
"In my opinion, congress has no existence and
can exercise no authority outside of the constitu
tion. Still less is it true that congress can deal
with new territories just as other nations have
done or may do with their now territories. This
nation is under the control of a written constitu
tion, whic.i 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. Monarchical and
despotic governments, unrestrained in their pow
ers by written constitutions, may do with newly
acquired territories what this government may
not do consistently with our fundamental law
"The idea that this country may acquire terri
tories anywhere upon the earth, by conquest or
treaty, and hold them as mere colonies or pro
vinces, Is wholly inconsistent with the spirit and
genius as well as with the words of the constitu
tion. The glory of our American system of gov
ernment is that It was created by a written con
stitution which protects the people against the ex
ercise of arbitrary, unlimited power, and the
limits of which may not be passed by the govern
ment It created, or by any branch of it, or even by
th ) people who ordained it, except by amendment.
It will bo an evil day for American liberty
If the theory of a government outside of the su-
Thc court's decision was based upon expe
diency. In the opinion to which Justice Harlan
referred as an effort to establish
The American "two governments in this coun
Empire. try one resting on the con
stitution -for Americans tho
other carried on in tho national capitol by the
same people, without the constitution for a sub
ject people," Justice Brown said: "A false step
at this time might be fatal to the development
of what Chief Justice Marshall called 'Tho
American Empire'. "
It would seem that this phrase was
employed by way of apology or defense
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
American empire," he referred to an empire of
love, an empire of perfect republicanism, an
empire of hearts, an empire in which the people
reigned supreme and the congress, the executive
and tho courts were the servants, rather than
the masters, of the people. He referred to "the
American empire" as expressing the perfect
reign of American principles on every foot of
American territory, and the enjoyment of
American rights, privileges, and immunities on
every foot of soil within the American domain.
It was in 1820 that Chief Justice Marshall
used this term. The court at that time' had
under consideration the constitutional provis
ion that "all dlltfoft, imports and oxaaoa slaall
be uniform throughout tho United States."
On this point Chief Justice Marshall said
"Does this term (The United States) designate
the whole or any portion of the American em
pire? Certainly this question can admit of but
one answer. It is the name given to our great
republic which is composed of states and terri
tories. The District of Columbia or the terri
tory west of tne Missouri river is not- less with
in the United States than Maryland or Penn
sylvania and it is not less necessary on the
principles of our constitution that uniformity
in the imposition of imposts, duties and ex
cises should be observed in the one than in tho
other."
"What a difference, then, between "the
American empire" of the great Marshall and
the American empire of Mr. Justico Brown!
Marshall's "American empire" was "our
great republic which is composed of states and
territories." The American empire of Mr.
Justice Brown contemplates "two governments
in this country; one resting on the constitution
for Americans-rthe other carried on in the na
tional capitol by the same people, without tho
constitution and for a subject people."
One of the extraordinary features of tho
Supreme Court's decision, delivered by Justice
Brown, is tho attempt to
Soothing assure the people that the safe-
Syrup. gUard of a. written constitu
tion can be destroyed without
danger. This argument is of such a remark
able character that it deserves to bo pasted
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