American system of government is that it was
created by a written constitution which protects the
people against the exercise of arbitrary, unlimited
power, and the limits of which instrument 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 or change of its provisions.
"To what purpose," Chief Justice Marshall said in
Marburyv. Madison, 1 Cranch, 137, 176, 2 L. ed.
60, 73, "are powers limited, and to what purpose is
that limitation committed to writing, if these limits
may, at any time, be passed by those intended to
be restrained? The distinction between a
government with limited and unlimited powers is
abolished if those limits do not confine the persons
on whom they are imposed, and if acts prohibited
and acts allowed a;e of equal obligation."

 The wise men who framed the Constitution,
 and the patriotic people who adopted it, were
 unwilling to depend for their safety upon what, in
 the opinion referred to, is described as "certain
 principles of natural justice inherent in Anglo-Saxon
 character, which need no expression in
 constitutions or statutes to give them effect or to
 secure dependencies against legislation manifestly
 hostile to their real interests." They proceed upon
 the theory-the wisdom of which experience has
 vindicated-that the only safe guaranty against
 governmental oppression was to withhold or restrict
 the power to oppress. They well remembered that
 Anglo-Saxons across the ocean had attempted, in
 defiance of law and justice, to trample upon the
 rights of Anglo-Saxons on this continent, and had
 sought, by military force, to establish a government
 that could at will destroy the privileges that inhere in
 liberty. They believed that the establishment here
 of a government that could administer public affairs
 according to its will, unrestrained by any
 fundamental law and without regard to the inherent
 rights of freemen, would be ruinous to the liberties
 of the people by exposing them to the oppressions
 of arbitrary power. Hence, the Constitution
 enumerates the powers which Congress and the
 other departments may exercise,-leaving
 unimpaired, to the states or the People, the
 powers not delegated to the national government
 nor prohibited to the states. That instrument so
 expressly declares in the 10th Article of
 Amendment. It 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. No higher duty rests
 upon this court that to exert its full authority to


prevent all violation of the principles of the
Constitution.

 Again, it is said that Congress has assumed, in
its past history, that the Constitution goes into
territories acquired by purchase or conquest only
when and as it shall so direct, and we are informed
of the liberality of Congress in legislating the
Constitution into all our contiguous territories. This
is a view of the Constitution that may well cause
surprise, if not alarm. Congress, as I have observed,
has no existence except by virtue of the
Constitution. It is the creature of the Constitution. It
has no powers which that instrument has not
granted, expressly or by necessary implication. I
confess that I cannot grasp the thought that
Congress, which lives and moves and has its being
in the Constitution, and is consequently the mere
creature of that instrument, can, at its pleasure,
legislate or exclude its creator from territories which
were acquired only by authority of the Constitution.

 By the express words of the Constitution,
 every Senator and Representative is bound, by
 oath or affirmation, to regard it as the supreme law
 of the land. When the constitutional convention
 was in session there was much discussion as to the
 phraseology of the clause defining the supremacy
 of the Constitution, laws, and treaties of the United
 States. At one stage of the proceedings the
 convention adopted the following clause: "This
 Constitution, and the laws of the United States
 made in pursuance thereof, and all the treaties
 made under the authority of the United States, shall
 be the supreme law of the several states and of
 their citizens and inhabitants, and the judges of the
 several states shall be bound thereby in their
 decisions, anything in the constitutions or laws of
 the several states to the contrary notwithstanding."
 This clause was amended, on motion of Mr.
 Madison, by inserting after the words "all treaties
 made" the words "or which shall be made." If the
 clause, so amended had been inserted in the
 Constitution as finally adopted, perhaps there
 would have been some justification for saying that
 the Constitution, laws, and treaties of the United
 States constituted the supreme law only in the
 states, and that outside of the states the will of
 Congress was supreme. But the framers of the
 Constitution saw the danger of such a provision,
 and put into that instrument in place of the above
 clause the following: "This Constitution, and the
 laws of the United States which shall be made in
 pursuance thereof, and all treaties made, or which


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