1 he LOmmoner.
Vol. I. No. 22.
Lincoln, Nebraska, June ai, 1901.
$1.00 a Year
CONSTITUTIONAL LIBERTY
The worst feature of the supremo court de
cision in the Downes case is that it strikes a
Wow at constitutional liherty. In attempting
to defend the position taken by the majority
of the court, Justice Brown used' arguments
which, if carried to their logical conclusion,
would deny the necessity for a constitution
anywhere. According to the decision of the
court, Congress can govern Porto Rico as- a
colony, without constitutional limitations, so
far as the taxing power is concerned, and
enough is said in the majority opinion to show
that no political right is absolutely secure.
The. question naturally arises: If the
Porto Ricans do not need the protection of a
written constitution, why do the people of the
United States need a written,constitution? If
we concede that the Porto Ricans are safe with
out a constitution we must also admit that the
American people would he safe without a con
stitution. Justice Brown says: "Grave appre
hensions of danger are felt by many eminent
men a fear lest an unrestrained possession of
' power on the part of congress may lead to un
just and oppressive legislation, in which the
natural rights of territories, or their inhabi
tants, may be engulfed in a centralized despo
tism. These fears, however, find no justifica-
tion in the action of Congress, nor in the con
duct of the British parliament toward its out
lying possessions since the American revolution.
There are certain principles of natural
justice inherent in the Anglo-Saxon character
which need no expressions in constitutions or
statutes to give them effect or to secure de
pendencies against legislation manifestly hos
tile to their real interests."
I shall at another time treat of his refer
ence to the benevolence of the British Parlia
ment, but my purpose at this time is to empha
size the fact that he repudiates the arguments
which have always been given in support of a
. written constitution. It was necessary to do
so in order to justify the Porto Rican decis
ion, and yet in doing so ho surrenders one of
the most vital principles of government. Some
of the republican papers have violently as
sailed me because I pointed out the political
heresy uttered by the court. Will any repub
lican paper quote the language which I have
quoted above, and then answer two questions?
First: Is a Constitution a Good Thing
for the People of the United States?
Second. If so, do not the Porto Ricans
also need a Constitution?
' A special invitation is extended to the edi
tor of PoBtmaster General Smith's paper to
answer these questions, but any republican
paper, great or small, conspicuous or obsoure,
is at liberty to try. The Porto Ricans do not
elect the congress; we do, and yet wo have the
protection of a constitution while the Porto .
Ricans have none. Wo can retire the members
of congress if we don't like their conduct; the
Porto Ricans cannot, and yet we have a consti
tution and the Porto Ricans have nono. The
members of congress are chosen from among
us, and they must live under the laws which
they make for us; the congressmen are not
chosen, from among the Porto Ricans, and do
not live under the laws made for the Porto
Ricans, and yet we have a constitution and the
Porto Ricans have none. If "there are cer
tain principles of natural justice inherent in
the Anglo-Saxon character which need no ex
pression in constitutions or statutes to give
.them effeot or to secure dependencies against
legislation manifestly hostile to their real in
terests," why were the people of revolutionary
days unwilling to rely upon that "natural jus
tice?" If there is no danger in "an unre
strained possession of power on the part of
congress" why were our forefathers so careful
to restrain that power? Has human nature so
changed as to make unnecessary now the con
stitutional limitations which were thought
necessary a century ago?
Constitutional liberty has been attacked
and the attack must be met at once. The doc
trine laid down by Justice Brown is antago
nistic to all that the American people have been
taught to believe sacred If wo admit his ar
gument when applied to Porto Ricans, upon
what ground can we stand when wo claim for
ourselves the protection of the constitution or
the bill of rights? If the principle contended
for by Justice Brown is established for the
government of colonies, it will by irresistible
logic become operative in the United States.
That the readers of The Commonee may for
tify their own views by the wisdom of Thomas
Jefferson, the following extracts are made
from his writings as collected in that invalu
able volume "The Jeffersonian Cyclopedia."
In 1803 Mr. Jefferson said: "Our peculiar
security is in the possession of a written con
stitution. Let us not make it a blank paper by
construction." -
In 1802 he wrote: "Though written con
stitutions may be violated in moments of pas
sion or delusion, yet they furnish a text to
which those who are watchful may again rally
and recall the people. They fix, too, for the
people the principles of their political creed."
At another time ho described our constitu
tion as " the ark of our safety, and grand palla
dium of our peace and happiness."
It will bo remembered that the federal con
stitution was opposed by some becauso it did
not contain a bill of rights, and the first ten
amendments were immediately adopted to rem
edy this defect and provide additional guaran
tees to life, liberty and property. Jefferson
was a firm believer in the doctrine which led
to the adoption of the bill of rights. In a let
ter written in IT 89 ho said: "I disapproved
from the first moment the want of a bill of
rights (in the constitution) to guard liberty
against the legislative as well as the executive
branches of the government; that is to say, to
secure freedom in religion, freedom of the press,
ficedom from monopolies, freedom from un
lawful imprisonment, freedom from a perma?
nent military, and a trial by jury in all' cis&i
determinable by the laws of the "land."
In a letter to James Madison, written in
1787, Jefferson said: "A bill of rights is what
thV people are entitled to against every govern
ment on earth, general or particular; and what
no just government should rofuse, or rest on
inferences."
At another time he defined his position as
follows: "By a declaration of rights I mean
one which shall stipulate freedom of religion,
freedom of the press, freedom of commerce
against monopolies, trial by juries in all cases,
no suspensions of the habeas corpus, no stand
ing armies. These arc fetters against doing
evil which no honeBt government should de
cline." Jefferson was a believer in popular govern
ment, but he ' also believed in the inalienable
Tights of individuals rights which the govern
ment does not give and ought not to take away
rights which cannot be safely intrusted to
the keeping of any legislative body. Until
recently, Jefferson's position on this subject
was unanimously endorsed.
Every state ihas adopted a constitution
placing restrictions upon the legislative branch
as well as upon the other branches of the govern
ment. The state of Ohio has a constitution and a
bill of rights; how can Senator Hanna and Presi
dent McKinley favor a constitution and a bill
of rights for Ohio and then declare that the
people of Porto Rico need no such protection?
If the farmers, laborers, and business men of
Ohio are not willing to trust the wisdom and
justice of an unrestrained state legislature, by
what process of reasoning do they reach the