The Commoner.
5
The Constitution and the Flag.
"The constitution follows tho flag' says one
of our contemporaries this morning.
"The constitution does not follow the flag,"
declares another.
"The constitution does not necessarily follow
the flag," asserts a third.
"Porto Rico is not a part of the United States,"
according to a fourth.
"Porto Rico is under the constitution," pro
claims a fifth.
It is not surprising that "confusion worse con
founded" should thus reign in the journalistic mind
after reading the several majority and -minority
opinions of the United States supremo court in the
insular cases. In none of these was the decision
of the court unanimous, or, it may he added, clear
ly defined. In each the justices divided almost
equally In one of the two leading cases the ma
jority held that the Dingley tariff could not apply
to Porto Rico because it was not a foreign country,
hut a territory of the United States. In the other it
ruled that for tariff purposes the island was not a
"part of the United States."
Five justices agreed that the Foraker act was
constitutional, hut disagreed as to the reasons why.
The opinion of the court read by Justice Brown
proceeds on the theory that Porto Rico is beyond
and congress above the constitution. The other
four seem to concede this only so far as tariff
legislation is concerned. Differing from Justice
Brown in the reasoning and scope of the deci
sion, it is not clear why they agreed to the em
bodiment of his views in the prevailing opinion
of the court, when all might have coincided in the
simple result and then presented their individual
views in individual opinions.
. It may be- well said that such a result leaves
mu.ch tp.be; desired. When neither lawyers nor lay
men can agree, as to th,e' meaning or scope of the
various rulings, arid the justices themselves are
in. conflict, it is obvious that there must be a con
fusion and uncertainty which leave the door wide
open to future doubt and discussion. Until, how
ever, the court reverses itself or more clearly de
fines and settles the constitutional issues raised,
the practical effect of its judgment in the Downes
' case will be that beyond the states the constitution
does not apply to the national domain, in the mat
ter of general government, but that there the
power of congress is plenary and its -will supreme.
-In announcing this conclusion Justice Brown
compared the power of congress With British col
onial sovereignty. But this simply begs the ques
tion, for the evident reason that Great Britain is a
monarchy without and the United States a republic
with a written constitution. New York Evening
Telegram.
They are Now "The Colonies."
It is somewhat difficult for the layman to brush
away the mazes that surround these varied deci
sions upon different phases of the Porto Rico tariff
cases, but in the one case where the issue is clean
cut, the court holds that it is in the power of con
gress to make for the "new possessions" sucb
tariff laws as it chooses.
In other words, that so far as the. taxing power
of the government is concerned, the constitution
does not go with the flag into newly acquired ter
ritory. This means that congress can go ahead and
erect such tariff barriers as it chooses against the
products of these countries that have come, or may
hereafter come, under the jurisdiction and sover
eignty of the United States, decreeing at the same
time that the products of this country shall go in
there free of duty. Inferentially, this means that
the republic has the power, under the constitution,
to go ahead and provide such colonial forms of
government as it may choose.
If this is the meaning of the court's decision,
the issues of the future will be over the methods
of administration; the amount of independence
which should bo accorded these people of our out
lying possessions; the amount of tariff which
should be levied against their products. So far as
the tariffs are concerned, for instance, there will
be a struggle between those interests which from
selfish motives would erect a tariff wall against
the colonies, dependencies, territories or what
ever they may bo called and thdse who will
advocate fair play for our friends in Porto Rico
and the Philippines, and will in the end force tho
free opening of our markets to them as theirs are
to us. For in such a contest, tho end. must bo
freedom of trade with tho colonies, even If selfish
ness may prevail for the present and tho imme
diate future.
So much for tho tariff phase of the quostion.
Irrespective of any other issues, it would have
been better had the supreme court decided against
tariffs, for then the question would have been set
tled for all time; in view, however, of this decision,
there must bo a political contest, probably a long
one, before tho inevitable end is reached.
Tho constitution does not follow the flag.
That means, for one thing, that the ultimate fate
of the Philippines is still, -and can for all time be,
an open question. Had the court held that the
constitution accompanied sovereignty, these islands
would, as the result of tho treaty of Paris, have to
remain a part of the union for all time. Onco ac
quired, there could be no parting with them. The
court now holds that wo have the right to hold
them and give them any government wo may
choose; and that while they belong to the United
States they are not part of the union in tho mean
ing of the constitution. This means that if it
should be deemed unwise to hold them we can
make such disposition of them as we see fit, trans
ferring them to a local government or even to somo
foreign government. Atlanta 'Constitution.
Intelligence Insulted.
"What a noble conception it was of tho fathers,
the founding of this government, riot upon tho will
and judgment of the few, but upon tho will and
judgment and conscience of tho many, a govern
ment in which all the people of every state partici
pate in a citizenship that is equal everywhere,
equal citizenship in equal states in a union that has
never been equaled. And, whether American man
hood and American liberty go to Cuba or Porto
Rico, or to Hawaii or to the Philippines, it rses
the same standard, proclaims the same principles
that for a century and a quarter this self-governing
people have enjoyed."
The above assertions were made by Presidont
McKinley in his address to the Knights Templar
at San Francisco. Very noble and patriotic they
sound, but, alas! very misleading. It Is true that
American liberty and American manhood should
carry the same principles and the same standard
wherever they go; and, as a corollary, the stars
and stripes should be planted in no place where
those principles cannot be put into practice. Can
President McKinley pretend to believe that they
have been carried Into any of these insular do
mains mentioned by him above? Can he deny that,
at the very outset, they are shut off by a prohibi
tion of export? Has not he, backed by a republi
can congress, decreed that American principles
shall not be carried into these islands? Is It not
the open and avowed policy of his administration
that they shall not even become states, but shall
remain colonial possessions, thus deliberately fol
lowing the example of the imperialistic nation
from which our forefathers wrested our liberty a
century and a quarter ago? Has not every particle
of legislation in the premises been taken with that
end in view? And in defense of these actions, has
not the position been openly taken by the admin
istration that these islands are not a part of the
United States, in order to establish a sort of de
fense for the levying of a special tariff duty in the
case of Porto Rico' in direct defiance of the consti
tutional provision that all such taxes "shall be uni
form throughout the United States?"
Is not the president aware, and does he
Imagine the people of tho United States aro so
ignorant that they, too, do not know that in nono
of these islands is thero 'a self-governing people,"
or a government resting on "tho will and judg
ment and conscience of tho many?" Can he, for a
moment, supposo that his hearers bolieve that such
a state of affairs is in existence in Cuba, or Porto
Rico, or tho Philippines, with tho possible excep
tion of tho domains of the Sultan of Jolo, with
whom ho has made a treaty which porjmits and
tolorates tho existence of polygamy and slavery?
President McKinley may not intentionally of
fend, but In making such assertions, or In asking
his auditors to believe them, he certainly insults
the intelligence of the Amorican public when ho
asks them to accept, unquestioned, such statements
as these, in direct contradiction to history so re
cent that every American schoolboy of tho ago of
fourteon is conversant with tho facts, ovon though
they have not yet crept into tho toxt-books. Buf
falo Times.
Supreme Court's Insular Decisions
The supremo court's decisions in the insular
cases will bo cause for disappointment throughout
the whole country, except in administration cir-v
cles, formore than one reason, but chiefly because
of the confusion arising from so many dissenting
and conflicting opinions.
It .looks to tho unprofessional mind as If law
ought to be law, and as if tho very learned men
on tho highest bench in the country ought to
know what tho law is and bo practically unani
mous in declaring it.
It certainly weakens the court's conclusions
that four of tho nine justices disagree with tub
other Ave, and that of the five at least three reach
the general agreement by the majority on other
reasoning than that pursued by tho justice who
handed down tho leading opinion. A conclusion
reached in such a way, by a bare majority of u.c
court, can servo as only a temporary opinion and
have little or no binding force as. a respectable
precedent. In a word public confidence in the. in
fallibility of tho court must be considerably
shaken. . .
Justice Brown's leading opinion is a manifest
ly labored effort to avoid tho force of precedents
and give a plausible view to the government's side
of the contention. To reach his conclusions, how
ever, he has been compelled to set congress abovo
the Instrument which created It, except in cases
where the rights of "organized states," within the
union, are involved. He has even recognized con
gress' right to "interpret" tho constitution as to
Its own powers, and regards such Interpretation
as a precedent to bo regarded by the court espe
cially organized under tho constitution as the real
and final interpreter of that instrument.
In short, after a mass of confused and con
fusing argument, Justice Brown limits the con
stitution to the "states" of the union, holds that
the term "United States" means only the actual
states, and erects congress into an autocratic, un
limited and imperial ruler over all territories be
longing to this country not organized as states!
That is the "half republic, half empire" theory in
its completo fullness. The flag of the free can float
over political slaves if congress wills it. Not un
til congress says so can new territory under tho
flag ever enjoy the benefits of the constitution. Tho
constitution only follows the flag by the grace of
congress! Houston Post.
m
Imperialism Sustained.
With tho court nearly evenly divided, it can
scarcely be said that the five-to-four decision final
ly and conclusively settles the main question as
to status of new territory. Tho death or resigna
tion of one member of the court and the appoint
ment of a new justice might result 'in a virtual re
versal of the decision rendered in the Downes case.
It Is to be presumed; however, that President Mc
Kinley would be careful to appoint no justice not
in accord with the administration view and the
majority decision.
Thero Is a possibility of a rehearing In the
Downes case, and of a change in tho views of one
or more members of the court, resulting in a re
versal of tho decision just rendered. Meanwhile
It must stand and be accepted as the law.
Tho net outcome of this decision Is that tho
constitution, by its own force, follows the flag
part way, but that beyond a certain indefinite
point it goes only so far as congress may see fit to
extend it.
Imperialism, with all its disastrous possibili-.
ties, is virtually sustained. Sacramento Bee.
I
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