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CHAPTER XXX.

THE INSULAR CASES.

§ 177. Downes v. Bidwell.

As a result of the Spanish-American War the United States came into possession of territories over which, because of their location, their economic and industrial status, and especially the character of their populations, it was deemed expedient to give to the Executive or to Congress the freest possible discretion with reference not only to the manner in which they should be governed, but to the civil rights that should be granted their inhabitants. The question whether in dealing with these new insular possessions, Congress should be held subject to all those constitutional limitations which apply when dealing with civil rights in the States or in the then existing Territories, thus became a most important one.

The form in which this question arose for judicial determination was as to the constitutionality of that clause of the Foraker Act establishing civil "congressional" government in Porto Rico, which provided a scale of customs duties to be paid upon goods brought into the ports of the United States from the island. This necessarily involved an answer to the question whether the provision of the Constitution that "all duties, imposts and excises shall be uniform throughout the United States " applied ex proprio vigore to Porto Rico, or whether, having never been formally "incorporated" by Congress into the United States either expressly or by implication, the island was not a part of the "United States" within the meaning of the term as used in the constitutional clause just quoted.

In Downes v. Bidwell' five of the nine justices of the Supreme Court concurred in holding that, though by the treaty of cession the island of Porto Rico came under the sovereignty of the United States, and when viewed from the standpoint of all other nations became a part of the United States, it did not, when looked at

1182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

from the viewpoint of its own public law, become a part of the "United States " as that term is used in the Constitution.

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Four of these five justices were able to reach this conclusion: First, by making a sharp distinction between "incorporated and "unincorporated" Territories; Second, by holding that the treaty-making power though able to annex Territories to the United States, that is, bring them under its sovereignty internationally speaking, is not competent to incorporate such areas in the United States, but that for this purpose the express or implied consent of Congress is necessary; and Third, that Congress in legislating for unincorporated Territories is not subject to many of the limitations which apply when it is legislating for the States and incorporated Territories.

It will be observed that so far as the general limitations upon the legislative powers of Congress are concerned, these four justices place the States and the incorporated Territories in the same class. Only the unincorporated Territories are by them excluded from the protection of such limitations as, for example, that federal tax laws shall be uniform throughout the United States. The fifth justice, Brown, who concurred with these four, does not, as we shall see, make any distinction between incorporated and unincorporated Territories, but excludes them all from the term "United States," and from the protection of all but the most fundamental of the constitutional limitations upon the power of Congress. The constitutional rights which these limitations create, he asserts, do not belong to the citizens of any Territories until by act of Congress they have been extended to them. Thus, while the four justices divide the domains of the United States into the three classes of States, Incorporated Territories, and Unincorporated Territories; Justice Brown recognizes only two categories, States and Territories.

The reasoning of the four justices was as follows: At the beginning very proper care is taken to point out that the ques

2 These were the same justices who dissented from the judgment of the court in De Lima v. Bidwell that by the treaty of annexation Porto Rico at once ceased to be "foreign territory" within the meaning of the federal tariff laws.

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tion is not as to whether the Constitution is to control in the premises, but as to which of its provisions are applicable. Every function of the government being . . derived from the Constitution," says the opinion, "it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable. Hence it is that whenever a power is given by the 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. As Congress in governing the Territories is subject to the Constitution, it results that all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows, also, that every provision of the Constitution which is applicable to the Territories is also controlling therein. In the case of the Territories, as in every other instance, when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable. . . And the determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States."

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Some of the limitations created by the Constitution, the opinion recognizes, are of such "general and fundamental character or so absolutely laid down" as to restrain Congress in whatever capacity it may be acting whether as a general legislature for all the regions and peoples subject to United States sovereignty, or only as a local legislature for the Territories. "Albeit," the opinion declares, "as a general rule, the status of a particular Territory has to be taken in view when the applicability of any provision of the Constitution is questioned, it does not follow, when the Constitution has absolutely withheld from the government all power on a given subject, that such an inquiry is necessary. Undoubtedly there are general prohibitions in the Constitution in favor of the liberty and property of the citizen, which are not mere regulations as to form and manner in which a con

ceded power may be exercised, but which are absolute denials of all authority under any circumstances or conditions to do particular acts. In the nature of things, limitations of this character cannot under any circumstances be transcended, because of the complete absence of power." The opinion does not attempt, however, to enumerate any of those absolute prohibitions of power, though it does later describe them as those made "in favor of human liberty."

With reference to the special point at issue, the opinion says: "There is in reason, then, no room in this case to contend that Congress can destroy the liberties of the people of Porto Rico by exercising in their regard powers against freedom and justice which the Constitution has absolutely denied. There can also be no controversy as to the right of Congress to locally govern the island of Porto Rico as its wisdom may decide, and in so doing to accord only such degree of representative government as may be determined on by that body. There can also be no contention as to the authority of Congress to levy such local taxes in Porto Rico as it may choose, even although the amount of the local burden so levied be manifold more onerous than is the duty with which this case is concerned. But as the duty in question was not a local tax, since it was levied in the United States on goods coming from Porto Rico, it follows that, if that island was a part of the United States, the duty was repugnant to the Constitution, since the authority to levy an impost duty conferred by the Constitution on Congress does not, as I have conceded, include the right to lay such a burden on goods coming from one to another part of the United States. And, besides, if Porto Rico was a part of the United States the exaction was repugnant to the uniformity clause. The sole and only issue, then, is not whether Congress has taxed Porto Rico without representation for, whether the tax was local or national, it could have been imposed although Porto Rico had no representative local government and was not represented in Congress - but is whether the particular tax in question was levied in such form as to cause it to be repugnant to the Constitution. This is to be resolved by

answering the inquiry, Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?"

The opinion then examines: First, whether the United States has the constitutional power to acquire territory and hold it as appurtenant and dependent territory without "incorporating" it in itself in a constitutional sense; and, Second, whether, if it has the power, it has done so in the case of Porto Rico.

The power to acquire and hold territory in whatever constitutional status it sees fit, is, says the opinion, an inherent power possessed by all sovereign States (citing numerous international law writers). This power is possessed by the United States. Its power to acquire territory is conceded. But, the opinion continues: "To concede to the United States the right to acquire, and to strip it of all power to protect the birthright of its citizens and to provide for the well being of the acquired territory by such enactments as may in view of its condition be essential, is, in effect, to say that the United States is helpless in the family of nations, and does not possess that authority which has at all times been treated as an incident of the right to acquire."

The assertion that it is contrary to the spirit of the Constitution to hold territories without incorporating them as integral parts of the United States this opinion declares to be based upon political and not upon judicial considerations, there being no particular provision of the Constitution upon the subject. "Conceding," says the opinion, "that the conception upon which the Constitution proceeds is that no territory, as a general rule, shall be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is entirely a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or real dangers." 4

2 The decision as to Porto Rico would of course conclude the status of the other insular possessions obtained in 1899 from Spain.

4 This would hardly seem to meet the point, which is not as to the power to hold districts for an indefinite length of time in a territorial condition, but as to the power to annex territory without "incorporating" it in the United States.

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