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"The result of what has been said," say the court, "is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession. As a necessary consequence, the impost in question assessed on merchandise coming from Porto Rico into the United States after the cession was within the power of Congress, and that body was not, moreover, as to such impost, controlled by the clause requiring that imposts should be uniform throughout the United States; in other words, the provision of the Constitution just referred to was not applicable to Congress in legislating for Porto Rico."

§ 178. Position of Justice Brown.

In a separate opinion Justice Brown concurred in the result reached by the four justices whose reasoning we have just been considering, but reached this result by laying down a doctrine that was agreed to by no other of the members of the court. Instead of holding that the term "United States," as used in the Constitution with reference to certain of the limitations placed by that instrument upon the powers of Congress, included the States and those Territories which had been incorporated into the Union, as held the four justices in whose judgment he concurred, he declared that, strictly speaking, the "United States" was to be construed as referring only to the States, and not to any other territory, whether incorporated or unincorporated. In fact Justice Brown does not admit the existence of a distinction between incorporated and unincorporated Territories, holding that as to all extra-State districts the constitutional limitations upon the powers of Congress apply only when, by congressional action, the Constitution has been extended over them.

After calling attention to the fact that, as decided in the case of De Lima v. Bidwell, by cession by treaty with a foreign power, a territory, already in the actual possession of the United States,

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at once ceased to be foreign and became domestic territory, Brown points out that the cases under consideration involve the further and more important question whether upon their becoming domestic territory the provisions of the federal Constitution were extended of their own force ex proprio vigore them. The Constitution not itself directly giving an answer to this, the solution he says will have to be found in the nature of the government created by that instrument. According to this justice's view, this instrument was created, if not by the States, at least exclusively for the States, and not for the Territories or any other extra-State lands that might belong to the United States. Thus, to quote his own words, "It can nowhere be inferred that the Territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of States; and even the provision relied upon here, that all duties, imposts, and excises should be uniform throughout the United States' is explained by the subsequent provisions of the Constitution, that no tax or duty shall be laid on articles. exported from any State,' and 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State to be obliged to enter, clear, or pay duties in another.' In short, the Constitution deals with States, their people and their representatives. The Thirteenth Amendment to the Constitution prohibiting slavery and involuntary servitude within the United States, or in any place subject to their jurisdiction' is also significant as showing that there may be places within the jurisdiction of the United States that are not part of the Union. . . Upon the other hand, the Fourteenth Amendment, upon the subject of citizenship, declares only that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place subject to their jurisdiction.''

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To restate, then, the position of Justice Brown, it would appear that, according to his view, the "United States" when looked at from the domestic or constitutional viewpoint, includes in the Union only the individual States such as Virginia, New York, Texas, etc. The Federal District, the Territories, and, in fact, all areas not within the boundaries of some one of these States, though under the national sovereignty are not a part of the Union. Looked at, however, from the international standpoint, the term "United States" has, as Justice Brown later observes, "a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal Government, wherever located. In its treaties and conventions with foreign nations this government is a unit. This is so, not because the Territories comprise a part of the government established by the people of the States in their Constitution, but because the Federal Government is the only authorized organ of the territories, as well as of the States, in their foreign relations."7

Not being considered a part of the political unit created and organized by the federal Constitution, it would seem logically to follow that the non-State areas, or rather their populations, would not be entitled to any of the privileges or immunities defined in that instrument. But Justice Brown does not draw this conclusion. Speaking of the limitations laid upon the powers of Congress by the Constitution, he says: "There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time and place, and such as are operative only throughout the United States' or among the several States. Thus, when the Constitution declares that no bill of attainder or ex post facto law shall be passed,' and that no title of nobility shall be granted by the United States' it goes to the competency of Congress to pass a bill of that description. Perhaps the same remark may be applied to the First Amendment that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

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7 Citing De Geofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed.

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or abridging the freedom of speech; or of the press; or the right of the people to peacefully assemble and to petition the government for a redress of grievances.' We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight Amendments is of general and how far of local application. Upon the other hand, when the Constitution declares that all duties shall be uniform throughout the United States' it becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the United States,' by which term we understand the States whose people united to form the Constitution, and such as have since been admitted to the Union upon an equality with them." And later on he says: "We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property, to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government. Of the latter class are the rights to citizenship, suffrage (Minor v. Happersett, 21 Wall. 162; 22 L. ed. 627), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the States to be unnecessary to the proper protection of individuals.

"Whatever may be finally decided by the American people as to the status of these islands and their inhabitants,- whether they shall be introduced into the sisterhood of States or be permitted to form independent governments- it does not follow that in the meantime, awaiting that decision, the people are in the

matter of personal rights unprotected by the provisions of our Constitution and subject to the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of the Constitution, to be protected in life, liberty, and property. This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States [citing cases]. We do not desire, however, to anticipate the difficulties which would naturally arise in this connection, but merely to disclaim any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect."

According, then, to Justice Brown, there are some provisions of the Constitution that control Congress and their inhabitants when legislating for such territories as are not within the States and others that do not so apply. Those that do not, he says, may, however, be made applicable by acts of Congress, and in part this has already been done in the case of all but the recently-acquired possessions. And, he implies that when the Constitution has been once formally extended to Territories and their inhabitants, neither Congress nor the territorial legislature can enact laws inconsistent therewith. As to this last assertion it has been argued that if an act of legislation is required to extend the Constitution over a territory, it goes there not as a Constitution but as a statute, and an irrepealable statute is admitted by everyone to be an impossibility—every legislature necessarily possessing a power to repeal equal to its power to enact. This being so, if the premises of Justice Brown be accepted, the conclusion is drawn, that at the present time, every Territory of the United States, organized or unorganized, contiguous or non-contiguous, continental and insular, still remains, except possibly as to a few general rights, absolutely subject to the arbitrary will of Congress. Arizona, New Mexico, Oklahoma and even the District of Columbia in this respect, it is argued, stand upon a footing exactly the same as that of Porto Rico or the Philippines.

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