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The .Commoner.
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territory by conquest, by treaty, or by discovery,
and occupation, Ib not disputed, nor is the proposi
tion that in all international relations, interests,
and responsibilities, the United States is a separate,
independent, and sovereign nation; but It does
not dorivo its powers from international law,
which, though a part of our municipal law, is not
a part of tho organic law of the land. The source
of national power in this country is tho constitu
tion of tho United States; and the government, as
to our internal affairs, possesses no inherent sov
ereign power not derived from that instrument,
and inconsistent with its letter and spirit.
COMMENTS ON JUSTICE WHITE'S OPINION.
"In tho concurring opinion of Mr. Justice
White, we find certain important propositions con
ceded, some of which are denied, or not admitted
in tho other on the De Lima case. These are to
tho effect that 'when an act of any department is
challenged, because not warranted by the constitu
te , tho existence of the authority is to bo ascer
tained by determining whether tho power has been
conferred by tho constitution, either in express
terms or by lawful implication;' that as every
function of tho government is derived from tho
constitution, 'that instrument is everywhere and
at all times potential in so far as its provisions are
applicable;' that 'wherever a power is given by
tho constitution and there is a limitation imposed
on the authority, such restriction operates upon
and confines every action on the subject within its
constitutional limits;' that where conditions are
brought to which any particular provision of tho
constitution applies, its controlling influence can
not be frustrated by the action of any or all of tho
departments of the government; that the constitu
tion has conferred on congress the right to create
such municipal organisations as it may deem best
for all tho territories of the United States, but
every applicable express limitation of the constitu
tion is in force, and even whore .there is no express
command which applies, there may nevertheless be
restrictions of so fundamental a nature that they
cannot be transgressed though not expressed in so
many words; that every provision of the constitu
tion which is applicable to the territories is con
trolling therein, and all the limitations of the
constitution applicable to congress in governing
the territories necessarily limit its power; that in
the case of the territories, when a provision of the
constitution is invoked, the question is whether
the provision relied on is applicable; and that the
power to lay and collect taxes, duties, imposts, and
excises, as well as the qualification of uniformity,
restrains congress from imposing an Impost duty
on goods coming into the United States from a
territory which has been incorporated into and
forms a part of the United States.
INQUIRY NECESSARY IN EACH CASE.
"And it is said that the determination of
whether a particular provision is applicable in
volves an inquiry into the situation of the terri
tory and its. relations to the United States, al
though it does not follow, when the constitution
has withheld all power over a given subject, that
such an inquiry is necessary. !
"The Inquiry is stated to be: 'Had Porto Rico,
at the time of the passage of the act in question,
been incorporated into and becomo an integral
part of the United States?' And the answer being
given that it had not, it is held that tho rule of uni
formity was not applicable.
"But I submit that that is not the question in
this case. The question is whether, when congress
has created a civil government for Porto Rico, has
constituted its inhabitants a body politic, has given
it a governor and other officers, a legislative as
sembly, and courts, with right of appeal to this
court, congress can in the same act and in the
exercise of tho power conferred -by the first clause
of section 8, impose duties on tho commerce be
tween Porto Rico and the states and other terri
tories in contravention of the rule of uniformity
qualifying the power. If this can bo done, it is be
cause the power of congress over all the territories,
is not restricted by tho constitution. This was
the .position taken by tho attorney general, with
a candor and ability that did him great credit.
"But that position is rejected, and the conten
tion seems to be that if an organized and settled,
province of another sovereignty is acquired by the
United States, congress has the power to keep it,
like a disembodied shade, in an intermediate state
of ambiguous existence for an indefinite period;
and, more than that, that after it has been called
from that limbo, commerce with it is absolutely
subject to tho will of congress, irrespective of con
stitutional provisions.
THE UNRESTRICTED POWER OP CONGRESS.
"Tho accuracy of this view Is supposed to be
sustained by tho act of 185G, in relation to tho pro
tection of citizens of tho United States removing
guano from unoccupied Islands; but I am unable
to seo why tho discharge by the United States of
kits undoubted duty to protect its citizens on terra
nullius, whether temporarily engaged in catching
and curing fish, or working mines, or taking away
manure, furnishes support to tho proposition that
tho power of congress over tho territories of tho
United States Is unrestricted.
"Great stress is thrown upon the word in
corporation,' as if possessed of some occult mean
ing, but I take it that tho act under consideration
made Porto Rico, whatever Its situation before,
an organized territory of the United States. Be
ing such, and the act undertaking to impose duties
by virtue of clause 1 of section 8, how is it that the
rule which qualifies the power does not apply to its
exercise in respect of commerce with that terri
tory? The power can only be exercised as pre
scribed, and oven if the rule of uniformity could
be treated as a mere regulation of the granted
power, an intimation to which I do not assent, tho
validity of these duties comes up directly, and it
is idle to discuss tho distinction between a total
want of power and a defective exercise of it.
"The concurring opinion recognizes the fact
that congress, in dealing with the people of new
territories or possessions, is bound to respect tho
fundamental guarantees of life, liberty, and prop
erty, but assumes that congress is not bound, in
those territories or possessions, to follow the rules
of taxation prescribed by the constitution. And
yet the power to tax involves the power to destroy,
and the levy of duties touches all our people in all
places under the jurisdiction of tho government.
MAY PROHIBIT COMMERCE ENTIRELY.
"The logical result is that congress may pro
hibit commerce altogether between the states and
territories, and may prescribe one rulo of taxation
in one territory, and a different rulo in another.
"That theory assumes that tho constitution
created a government empowered to acquire coun
tries throughout the world, to be governed by dif
ferent rules than those obtaining in the original
states and territories, and substitutes for the pres
ont system of republican government, a system of
domination over-distant provinces in the exercise
of unrestricted power.
"In our judgment, so much of the Porto Rican
act as authorized the imposition of these duties is
Invalid, and plaintiffs were entitled to recover.
"Some argument was made as to general con
sequences apprehended to flow frbm this result,
but the language of the constitution is "too plain
and unambiguous to permit Its meaning to be
thus influenced. There is nothing 'in the literal
construction so obviously absurd, or mischievous,
or repugnant to the general spirit of the Instru
ment, as to justify those who expound the consti
tution' in giving it a construction not warranted
by its words.
"Briefs have been presented at this bar, pur
porting to be on behalf of certain industries, and
eloquently setting forth the desirability that our
government should possess tho power to impose
a. tariff on the products of nowly acquired terri
tories so as to diminish or remove competition.
But that furnishes no basis for judicial judgment,
and if the producers of tobacco, or sugar, or rice,
in the existing states of this union, believe the con
stitution should be amended so as to reach that re
sult, the instrument itself provides how such
amendment can be accomplished. The people of
all the states are entitled to a voice, in the settle
ment of that subject.
"Again, it is objected on behalf of the govern
ment that the possession of absolute power is es
sential to the acquisition of vast and distant ter
ritories, and that we should regard the situation as
it is today rather than as it was a century ago.
'We must look at the situation as comprehending
a possibility I do not say a probability, but a
possibility that the question might be as to the
powers of this government in the acquisition of
Egypt and the Soudan, or a section of Central
Africa, or a spot In the Antarctic Circle, or a sec
tion of tho Chinese empire.'
. FRAMED FOR ALL AGES.
"But it must be remembered that, as Marshall
and. Story declared, tho constitution was framed
for ages to come, and that the sagacious men wh'o
franked it were well aware that a mighty future
Waited on their work. The rising sun to which
Franklin referred at the close of the convention,
they well knew, was that star of empire, whose
course Berkeley Jiad sung sixty years before.
"They may not indeed have deliberately con-
sidered a triumphal progress of tho nation, as
such, around tho earth, but, as Marshall wrote:
'It Is not enough to say, that this particular caso
was not in the mind of the convention, when tho
article was framed, nor of the American people,
when it was adopted. It is necessary to go farther,
and to say that, had this particular case been sug
gested, tho language would have been so varied,
as to exclude it, or it would have been made a
special exception.'
"This cannot bo said, and, on the contrary, in
order to the successful extension of our institu
tions, tho reasonable presumption is that tha
limitations on tho exertion of arbitrary power
would have been made more vigorous.
"After all, these arguments are merely politi
cal, and 'political reasons have not the requisite
certainty to afford rules of judicial interpretation.'
POWER TO EXECUTE ALL LAWS,
"Congress has power to make all laws which
shall bo necessary and proper for carrying into
execution all the powers vested by the constitu
tion in the government of the United States, or In
any department or officer thereof. If the end bo
legitimate and within the scope of the constitu
tion, then, to accomplish it, congress may use. 'all
the means which are appropriate, which are plain
ly adapted to that end, which are not prohibited,
but consist wlth the letter and spirit of the con
stitution.' "The grave duty of determining whether an
act of congress does or does not comply with theso
requirements is only to bo discharged by applying
the well-settled rules which govern the interpreta
tion of fundamental law, unaffected by the theoret
ical opinions of individuals.
"Tested by those rules, our cbnvictiqn is that
the imposition of these duties cannot be sustained."
Justice Harlan's Opinion.
Justico Harlan submitted a separate opin
ion called forth, ho said, "by certain passages
in one of the opinions just delivered in sup
port of tho judgment." Ho said:
"Although the states are constituent parts of
the United States, the government rests upon the
authority of the people of the United States, and
not on that of the states. Chief Justice Marshall,
delivering the unanimous judgment of this court
in Cohens vs. Virginia, said: 'That the United
States form for many, and for most important
purposes, a single nation, has not yet been denied.
In war, we are one people. In making peace we
are one people. In many other respects the Ameri
can people are ono; and the government which is
alone capable of controlling and managing their
interests is the government of the union. It is
their government, and in that character they have
no other. America has chosen to be, in many re
spects and to many purposes, a nation; and for all ,
these purposes her government is complete; to ail
these objects it is competent. The people have de-f
clared that in the exercise of all powers given for
those objects it is supreme. It can, then, in effect
ing these objects, legitimately -control all individ
uals or governments within the American terri
tory. CONSTITUTION FOR THE TERRITORIES.
"In view of these utterances by this court, I
cannot assent to the proposition, whether it be an
nounced in express words or by implication, that
the national government is a government by tho
states in union, and tlfat the prohibitions and
limitations of tho constitution are addressed, only
to the states. That is but another form of say
ing that the government is a mere league of states,
held together by compact between themselves;
whereas, as this court has often declared, it is a
government created by the people of the United
States, with enumerated powers, and supreme with
respect to certain objects throughout all the terri
tory over which its jurisdiction extends. The con
stitution 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 subject to the authority and
jurisdiction of the United States.
"In the opinion to which I am referring it is
also said that 'practical Interpretation put by con
gress upon the constitution has been long con
tinued and uniform to the effect that the constitu
tion is applicable to territories acquired by pur
chase or conquest only when and so far as congress
Shall direct;'- that while ail power of government
may be abused, the same may be said of tho power
of tho government 'under the constitution as well
as outside of it;' that 'if it once be conceded that
we are at liberty to acquire foreign territory, a
presumption arises that our power with respect
to such territories is the same power which other
nations have been accustomed to exercise with re
spect to territories acquired by them;' that 'the
liberality of congress in legislating the constitu
tion into all our contiguous territories has un
doubtedly fostered the impression that it went
thero by its own force, but there is nothing in
the constitution itself, and little in the interpre
tation put upon it, to confirm that impression;'
that as tho states could only delegate to congress
such powers as they themselves possessed, and as
they had no power to acquire new territory, and
therefore none to delegate in that connection, tho
logical inference is that 'if congress had power to
acquire now territory, which is conceded, that
power was not hampered by the constitutional pro
visions;' that if 'we assumo that the territorial
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