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." "

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;

7 Citing De Geofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642.

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.

It is not certain, however, that the premises of this argument are sound. It would seem that there are some legislative acts which produce results which cannot be nullified by subsequent action of the legislative body. Thus, to give a single example, new States are admitted into the Union by enabling acts of Congress, but Congress may not, by subsequent action, expel the States so admitted from the Union. A similar conclusive effect might be given to acts extending the Constitution over the territories.

In support of his position Justice Brown cites numerous instances in the history of the United States in which acts of Congress have been limited in their application to the States, or, where their application to the Territories has been desired, express provision to that effect has been made. The decisions of the Supreme Court, however, upon the question whether the limitations of the Constitution extend ex proprio vigore over the Territories, he admits to have been "not altogether harmonious." Those which upon their face seem inconsistent with his position he explains or attempts to explain away. Thus he avoids the case of Loughbrough v. Blakes by saying that the District of Columbia having once been a part of a State, it could not by cession to the General Government be deprived of the constitutional rights which it had once enjoyed.9

85 Wh. 317; 5 L. ed. 98.

9 He says: "There could be no doubt as to the correctness of this conclusion, so far, at least, as it applied to the District of Columbia. This District had been a part of the States of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward. The tie that bound the States of Maryland and Virginia to the Constitution could not be dissolved, without at least the consent of the federal and state governments to a formal separation. The mere cession of the District of Columbia to the Federal Government relinquished the authority of the States, but it did not take it out of the United States or from under the ægis of the Constitution. Neither party had ever consented to that construction of the cession. If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Con

Other cases he explains away by maintaining that prior to the accruing of the causes of action litigated in them, the Constitution had been extended by act of Congress over the Territories concerned.

The very radical position taken by Justice Brown in the Insular Cases has been stated at some length because of the prominence that has been given it in the public discussions of the judgments rendered in the Insular Cases. As a matter of fact, however, as we have already learned, this position was not concurred in by any one of the other eight justices, and it thus stands not only unsupported by previous opinions of the court, but in flat contradiction to many of them. The "United States," as that term is employed in the Constitution, the four concurring justices said, includes not simply the States, as Justice Brown had said, but also such Territories as have been "incorporated" with them; and the Constitution itself, therefore, extends over them as well as over the States-not of course, however, in the sense that the powers of Congress when legislating for the States and the incorporated Territories are the same, but that, so far as applicable, the provisions of the Constitution are at once applicable to all Territories subject to the sovereignty of the United States, and, therefore, require no act of Congress for their extension, nor can their application to such Territories be denied by Congress.

§ 179. Argument of Dissenting Justices.

Four justices (Chief Justice Fuller, and Justices Harlan, Brewer and Peckham) dissented from the judgment rendered in Downes v. Bidwell. According to their view there is no constitutional distinction to be drawn between Territories incorporated in the United States and Territories unincorporated and merely appurtenant to the United States. States and Territories, they declare, are the only political units known to American Constitutional Law, and when by a treaty of cession and actual occupation, lands and their inhabitants have come under the sovereignty

stitution. Indeed, it would have been a fanciful construction to hold that territory which had once been a part of the United States ceased to be such by being ceded directly to the Federal Government."