Downes v. Bidwell (1901)

Downes v. Bidwell (The Insular Cases): Background[1]1

© James G. Wilson

To understand any law, be it an obscure municipal regulation, a complex legal doctrine, or even the entire written American Constitution, one must determine the law’s purposes. Few would deny that the American Constitution was designed to protect selected individual freedoms, prevent the government from tyrannizing such minorities as the wealthy and religious sects, unify the country both economically and politically, and protect the nation from foreign and domestic threats of violence. Downes v. Bidwell (1901), the most important of a group of cases known as The Insular Cases, reminds us that the Constitution also had the goal of spreading American power throughout the Western Hemisphere. By holding that Congress could turn Puerto Rico and the Philippines into permanent colonies with less than full constitutional protection, the Downes Court deviated from the core constitutional principles underlying the United States’ enduring quest for a powerful republican empire.

The Framers did not believe there was an inherent conflict between a republic and an empire. Long before the Constitutional Convention, Benjamin Franklin made his political reputation by developing a constitutional theory to justify the American Revolution. Franklin argued that the British Constitution had to provide equality of citizenship throughout the British Empire. Every citizen was a subject of the King, but no citizen could be subordinated to another citizen. Thus, American colonists had the same basic rights of republican representation as their English counterparts. Americans and Englishmen alike owed their allegiance to the King, but not to each other. This geographical egalitarianism clashed with the English belief in Parliamentary sovereignty. The English replied that the Americans had to accept all Parliamentary laws, including any revenue measures. Just before the Revolution exploded, Thomas Jefferson wrote such an eloquent defense of this egalitarian principle that he was later selected as the lead author of the Declaration of Independence. Jefferson subsequently turned this norm into law in his draft of the Northwest Ordinance, which required those Territories to be admitted as equal States as soon as their population increased to an appropriate size.

James Madison, the primary architect of the Constitution, successfully fought efforts in the Constitutional Convention to put financial obligations on new States and to create unequal representation that would perpetually favor existing States. In the famous Federalist Paper Number Ten, he explained how the proposed Constitution would simultaneously protect republicanism and facilitate the expansion of American power. Factions based upon economic or religious differences were the greatest threats to republican governments. Large republics were less likely to be torn apart because it would be harder for any faction to mobilize its forces. A huge variety of economic interests and religious sects would compete amongst themselves, never able to form a truly dangerous coalition. In a letter to Jefferson, Madison explained that the ancient political axiom of “divide and conquer” applied to republican as well as tyrannical governments. Republicanism and empire-building were not antagonistic forces, as thinkers like Montesquieu had maintained. Rather, they reinforced each other to create Jefferson’s “empire of liberty.”

The Framers’ commitment to equality of citizenship was not absolute. Residents of the District of Columbia never could vote in national elections. When Jefferson completed the Louisiana Purchase with Madison’s assistance as Secretary of State, he selected some of his allies to supervise the new Territory instead of permitting the residents to have elections. Jefferson did not want representative government until enough English settlers moved into the area to dilute the political and cultural views of the French and Spanish who lived there. This so angered the citizens of New Orleans that they complained to Jefferson. His rebuff created such a culture of resentment that Aaron Burr foolishly attempted to foment a revolution throughout the Mississippi region.

Although Dred Scott v. Sandford (1857) is appropriately vilified, it contained an aggressive conception of equality of national citizenship that is preferable to the current constitutional law doctrine established by Downes. Chief Justice Taney held that Congress could not create permanent colonies; eventually every part of the United States must be an equal State within the United States. Congress could not deprive citizens of their fundamental constitutional rights wherever the United States had territorial sovereignty. Thus, every citizen had the equal right to go to any other part of the Union, including any Territories, and take along any lawfully acquired property. Taney’s approach begged an important question. Although one has a right to take along much property, it is far from obvious that States or Territories could not proscribe certain odious, controversial forms of property like slavery. For example, the State of Ohio could arrest someone for bringing in an illegal drug that was permitted in a different State.

The 14th Amendment’s repeal of Dred Scott extended equality of national and State citizenship to African-Americans and all others born within the United States. It did not overrule the doctrines that neither any part of the country nor any of its people can be perpetually relegated to second-class constitutional status. The 14th and 15th Amendments created a potential problem for those who wished to continue the expansion of American economic, military, and geographical power. Should the United States extend its sovereignty to countries like Cuba, Mexico, Puerto Rico, or the Philippines, it might have to give all residents, few of whom were white, full American citizenship rights, including the rights to vote in national elections, travel, speech, jury, and so forth. By the time the United States won the Spanish American War in 1898, giving it control of Puerto Rico and the Philippines, the Republicans’ commitment to racial equality that prompted the Reconstruction Amendments was a distant, repudiated history. When Congress considered the Philippines’ status, South Carolina Senator Benjamin Tillman opposed statehood because of “the injection in the body politic of the United States . . . [of] that vitiated blood, that debased and ignorant people.”[2]

While Plessy v. Ferguson (1896) at least acknowledged some constitutional notion of equality by formulating the “separate but equal” doctrine, the Downes Court once again imbedded racial supremacy into the constitutional doctrine. It disingenuously distinguished Dred Scott by reminding readers of Dred Scott’s contribution to causing the Civil War. Conflict probably also influenced the Downes Court. The United States Army was engaged in a protracted, bloody conflict to suppress a rebellion in the Philippines that eventually cost over four thousand American troops, twenty thousand opposing native soldiers, and up to two hundred thousand civilians.

On a technical level, the outcome might not seem extreme. The case only involved the economic right of Puerto Rican traders to ship their imported goods duty-free to the United States. More importantly, the Court indicated that it would protect individual property rights and some other “natural rights.” But this decision, combined with so many other Supreme Court decisions from that era that were hostile to people of color, effectively closed the constitutional door on Territorial residents’ rights to become equal citizens with equal rights. In subsequent cases, the Court created a pastiche of rights for people living in the Territories. It protected property rights[3] (necessary for the international trade that these colonies facilitated) and the right not to be punished in violation of the 8th Amendment’s ban on cruel and unusual punishments,[4] but denied criminal defendants the right to trial by jury or indictment by grand jury because those rights were not “fundamental”[5] and precluded residents from ever participating in national elections. Thus, a significant portion of American territory resembled the American colonies at the time of the Revolution; the people living there were permanently relegated to second class status without equal representative powers. Eventually Congress rectified the situation to some degree, turning the residents of Puerto Rico into American citizens and granting the Philippines its independence.

A comparison of Downes to the more infamous cases of Dred Scott and Plessy reveals how many different normative factors are imbedded in important constitutional cases. Dred Scott is arguably the worst decision the Court ever made because it aggressively constitutionalized race slavery and helped trigger the Civil War. Yet the decision contained humane constitutional principles — such as the right to equality throughout the nation, the inability of Congress to create permanent colonies, substantive due process, and the right to travel. Furthermore, Taney had a great deal of constitutional text and history to support his underlying assumption that the Constitution protected Southern slavery. The decision also had the “virtue” of being too extreme, forcing the North and the West to confront the slavery issue.

Plessy rightfully remains one of the Court’s most shameful moments because it dramatically undermined the Civil War Amendments’ purpose of preventing white racial supremacy in the South by constitutionalizing the distinction between “social rights” and “fundamental civil rights.” It caused injury and despair that linger to this very day. Although Taney distorted history to reach his conclusions about the narrow scope of the Territories Clause and the inability of African Americans to be state or national citizens, he made the powerful argument that his constitutional interpretations advanced the original Constitution’s objective of protecting slavery.

Although its scope is smaller, Downes belongs in this pantheon of evil. Jettisoning the long-standing traditions of equality throughout the land, Downes relied on racism far more blatantly than Plessy. More importantly, the Supreme Court has overruled Plessy, but not Downes. To this very day, Puerto Rico remains unable to participate in national elections.

Downes v. Bidwell (The Insular Cases)

182 U.S. 244 (1901)

[Lead opinion: Brown. Concurring in judgment: White, Shiras, and McKenna; and Gray. Dissenting: Fuller (C.J.), Harlan, Brewer, and Peckham.]

IN ERROR to the Circuit Court of the United States for the Southern District of New York to review a judgment sustaining a demurrer to a complaint in an action to recover back duties paid under protest upon importations from Porto Rico under the Foraker act. Affirmed.

Mr. Justice Brown announced the conclusion and judgment of the court.

This case involves the question whether merchandise brought into the port of New York from Porto Rico since the passage of the Foraker act is exempt from duty, notwithstanding the 3d section of that act which requires the payment of “15 per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries.” . . .

In the case of De Lima v. Bidwell (1901), just decided, we held that upon the ratification of the treaty of peace with Spain, Porto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from that island. We are now asked to hold that it became a part of the United States within that provision of the Constitution which declares that “all duties, imposts, and excises shall be uniform throughout the United States.” Art. 1, § 8. If Porto Rico be a part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but because by § 9 “vessels bound to or from one state” cannot “be obliged to enter, clear, or pay duties in another.”

The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, in the practical construction put upon it by Congress, and in the decisions of this court. . . .

It was thought by Chief Justice Taney in the Dred Scott Case (1857) that the sole object of the territorial clause was “to transfer to the new government the property then held in common by the states, and to give to that government power to apply it to the objects for which it had been destined by mutual agreement among the states before their league was dissolved;” that the power “to make needful rules and regulations” was not intended to give the powers of sovereignty, or to authorize the establishment of territorial governments — in short, that these words were used in a proprietary, and not in a political, sense. But, as we observed in De Lima v. Bidwell, the power to establish territorial governments has been too long exercised by Congress and acquiesced in by this court to be deemed an unsettled question. Indeed, in the Dred Scott Case it was admitted to be the inevitable consequence of the right to acquire territory.

It is sufficient to observe in relation to these three fundamental instruments, that 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, to be governed solely by representatives of the states; and even the provision relied upon here, that all duties, imposts, and excises shall be uniform “throughout the United States,” is explained by 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 be obliged to enter, clear, or pay duties in another.” In short, the Constitution deals with states, their people, and their representatives. . . .

[T]he 14th 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.” . . .

Eliminating, then, from the opinions of this court all expressions unnecessary to the disposition of the particular case, and gleaning therefrom the exact point decided in each, the following propositions may be considered as established:

  1. That the District of Columbia and the territories are not states within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states;
  2. That territories are not states within the meaning of Rev. Stat. § 709, permitting writs of error from this court in cases where the validity of a state statute is drawn in question;
  3. That the District of Columbia and the territories are states as that word is used in treaties with foreign powers, with respect to the ownership, disposition, and inheritance of property;
  4. That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish;
  5. That the Constitution does not apply to foreign countries or to trials therein conducted, and that Congress may lawfully provide for such trials before consular tribunals, without the intervention of a grand or petit jury;
  6. That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith.

The case of Dred Scott v. Sandford remains to be considered. . . . Proceeding to decide the case upon the merits, [Chief Justice Taney] held that the territorial clause of the Constitution was confined to the territory which belonged to the United States at the time the Constitution was adopted, and did not apply to territory subsequently acquired from a foreign government.

In further examining the question as to what provision of the Constitution authorizes the Federal government to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, he made use of the following expressions, upon which great reliance is placed by the plaintiff in this case: “There is certainly no power given by the Constitution to the Federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; . . . and if a new state is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the state, and the citizens of the state, and the Federal government. But no power is given to acquire a territory to be held and governed permanently in that character.”

He further held that citizens who migrate to a territory cannot be ruled as mere colonists, and that, while Congress had the power of legislating over territories until states were formed from them, it could not deprive a citizen of his property merely because he brought it into a particular territory of the United States, and that this doctrine applied to slaves as well as to other property. Hence, it followed that the act of Congress which prohibited a citizen from holding and owning slaves in territories north of 36° 30′ (known as the Missouri Compromise) was unconstitutional and void, and the fact that Scott was carried into such territory, referring to what is now known as Minnesota, did not entitle him to his freedom. . . .

It must be admitted that this case is a strong authority in favor of the plaintiff, and if the opinion of the Chief Justice be taken at its full value it is decisive in his favor. We are not, however, bound to overlook the fact, that, before the Chief Justice gave utterance to his opinion upon the merits, he had already disposed of the case adversely to the plaintiff upon the question of jurisdiction, and that, in view of the excited political condition of the country at the time, it is unfortunate that he felt compelled to discuss the question upon the merits, particularly so in view of the fact that it involved a ruling that an act of Congress which had been acquiesced in for thirty years was declared unconstitutional. It would appear from the opinion of Mr. Justice Wayne that the real reason for discussing these constitutional questions was that “there had become such a difference of opinion” about them “that the peace and harmony of the country required the settlement of them by judicial decision.” The attempt was not successful. It is sufficient to say that the country did not acquiesce in the opinion, and that the Civil War, which shortly thereafter followed, produced such changes in judicial, as well as public, sentiment as to seriously impair the authority of this case. . . .

To sustain the judgment in the case under consideration, it by no means becomes necessary to show that none of the articles of the Constitution apply to the island of Porto Rico. 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 or 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 apply to the 1st Amendment, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 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. . . .

Grave apprehensions of danger are felt by many eminent men — a fear lest an unrestrained possession of power on the part of Congress may lead to unjust and oppressive legislation in which the natural rights of territories, or their inhabitants, may be engulfed in a centralized despotism. These fears, however, find no justification in the action of Congress in the past century, nor in the conduct of the British Parliament towards its outlying possessions since the American Revolution. . . . There are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests. Even in the Foraker act itself, the constitutionality of which is so vigorously assailed, power was given to the legislative assembly of Porto Rico to repeal the very tariff in question in this case, a power it has not seen fit to exercise. . . .

It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.

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 own 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, to suffrage (Minor v. Happersett (1874)), 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. Yick Wo v. Hopkins (1886); Fong Yue Ting v. United States (1893); Lem Moon Sing v. United States (1895); Wong Wing v. United States (1896). 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. . . .

Patriotic and intelligent men may differ widely as to the desireableness of this or that acquisition, but this is solely a political question. We can only consider this aspect of the case so far as to say that no construction of the Constitution should be adopted which would prevent Congress from considering each case upon its merits, unless the language of the instrument imperatively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American empire. Choice in some cases, the natural gravitation of small bodies towards large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.

We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.

The judgment of the Circuit Court is therefore affirmed.

Mr. Justice White, with whom concurred Mr. Justice Shiras and Mr. Justice McKenna, uniting in the judgment of affirmance. . . .

It may not be doubted that by the general principles of the law of nations every government which is sovereign within its sphere of action possesses as an inherent attribute the power to acquire territory by discovery, by agreement or treaty, and by conquest. It cannot also be gainsaid that, as a general rule, wherever a government acquires territory as a result of any of the modes above stated, the relation of the territory to the new government is to be determined by the acquiring power in the absence of stipulations upon the subject. . . .

Mr. Justice Gray, concurring.[Omitted.]

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dissenting. . . .

Some argument was made as to general consequences apprehended to flow from 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 instrument as to justify those who expound the Constitution” in giving it a construction not warranted by its words. . . .

The grave duty of determining whether an act of Congress does or does not comply with these requirements is only to be discharged by applying the well-settled rules which govern the interpretation of fundamental law, unaffected by the theoretical opinions of individuals.

Tested by those rules our conviction is that the imposition of these duties cannot be sustained.

Mr. Justice Harlan, dissenting. . . .

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 v. Virginia (1821) 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 American people are one; 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 respects and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for those objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.” . . .

In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express words or by implication, that the national government is a government of or by the states in union, and that the prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying that, like the government created by the Articles of Confederation, the present 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 over states and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national government is in any sense a compact, it is a compact between the People of the United States among themselves as constituting in the aggregate the political community by whom the national government was established. The Constitution 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 of the United States. Martin v. Hunter’s Lessee (1816). . . .

Although from the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter’s Lessee) we are now informed that Congress possesses powers outside of the Constitution, and may deal with new territory, acquired by treaty or conquest, in the same manner as other nations have been accustomed to act with respect to territories acquired by them. In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces — the people inhabiting them to enjoy only such rights as Congress chooses to accord to them — is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.

The idea prevails with some — indeed, it found expression in arguments at the bar — that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independent of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects, proceed outside of the Constitution. The glory of our American system of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be passed by the government it created, or by any branch of it, or even by the people who ordained it, except by amendment or change of its provisions. “To what purpose,” Chief Justice Marshall said in Marbury v. Madison (1803), “are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.”

The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon what, in the opinion referred to, is described as “certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.” They proceeded upon the theory — the wisdom of which experience has vindicated — that the only safe guaranty against governmental oppression was to withhold or restrict the power to oppress. They well remembered that Anglo-Saxons across the ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had sought, by military force, to establish a government that could at will destroy the privileges that inhere in liberty. They believed that the establishment here of a government that could administer public affairs according to its will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution enumerates the powers which Congress and the other departments may exercise — leaving unimpaired, to the states or the People, the powers not delegated to the national government nor prohibited to the states. That instrument so expressly declares in the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution. . . .

Further, it is admitted that some of the provisions of the Constitution do apply to Porto Rico, and may be invoked as limiting or restricting the authority of Congress, or for the protection of the people of that island. And it is said that 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 or place, and such as are operative only ‘throughout the United States’ or among the several states.” In the enforcement of this suggestion it is said in one of the opinions just delivered: “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.” I cannot accept this reasoning as consistent with the Constitution or with sound rules of interpretation. The express prohibition upon the passage by Congress of bills of attainder, or of ex post facto laws, or the granting of titles of nobility, goes no more directly to the root of the power of Congress than does the express prohibition against the imposition by Congress of any duty, impost, or excise that is not uniform throughout the United States. The opposite theory, I take leave to say, is quite as extraordinary as that which assumes that Congress may exercise powers outside of the Constitution, and may, in its discretion, legislate that instrument into or out of a domestic territory of the United States.

In the opinion to which I have referred it is suggested that conditions may arise when the annexation of distant possessions may be desirable. “If,” says that opinion, “those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.” In my judgment, the Constitution does not sustain any such theory of our governmental system. Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty. A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions. The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued. The People have decreed that it shall be the supreme law of the land at all times. When the acquisition of territory becomes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make “concessions” that are inconsistent with its provisions. The authority to make such concessions implies the existence in Congress of power to declare that constitutional provisions may be ignored under special or embarrassing circumstances. No such dispensing power exists in any branch of our government. The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies. If the Constitution is in force in any territory, it is in force there for every purpose embraced by the objects for which the government was ordained. Its authority cannot be displaced by concessions, even if it be true, as asserted in argument in some of these cases, that if the tariff act took effect in the Philippines of its own force, the inhabitants of Mandanao, who live on imported rice, would starve, because the import duty is many fold more than the ordinary cost of the grain to them. The meaning of the Constitution cannot depend upon accidental circumstances arising out of the products of other countries or of this country. We cannot violate the Constitution in order to serve particular interests in our own or in foreign lands. Even this court, with its tremendous power, must heed the mandate of the Constitution. No one in official station, to whatever department of the government he belongs, can disobey its commands without violating the obligation of the oath he has taken. By whomsoever and wherever power is exercised in the name and under the authority of the United States, or of any branch of its government, the validity or invalidity of that which is done must be determined by the Constitution. . . .

I reject altogether the theory that Congress, in its discretion, can exclude the Constitution from a domestic territory of the United States, acquired, and which could only have been acquired, in virtue of the Constitution. . . .

We heard much in argument about the “expanding future of our country.” It was said that the United States is to become what is called a “world power;” and that if this government intends to keep abreast of the times and be equal to the great destiny that awaits the American people, it must be allowed to exert all the power that other nations are accustomed to exercise. My answer is, that the fathers never intended that the authority and influence of this nation should be exerted otherwise than in accordance with the Constitution. If our government needs more power than is conferred upon it by the Constitution, that instrument provides the mode in which it may be amended and additional power thereby obtained. The People of the United States who ordained the Constitution never supposed that a change could be made in our system of government by mere judicial interpretation. They never contemplated any such juggling with the words of the Constitution as would authorize the courts to hold that the words “throughout the United States,” in the taxing clause of the Constitution, do not embrace a domestic “territory of the United States” having a civil government established by the authority of the United States. . . .

In my opinion Porto Rico became, at least after the ratification of the treaty with Spain, a part of and subject to the jurisdiction of the United States in respect of all its territory and people, and that Congress could not thereafter impose any duty, impost, or excise with respect to that island and its inhabitants, which departed from the rule of uniformity established by the Constitution.


[1]. James G. Wilson, The Imperial Republic: A Structural History of American Constitutionalism from the Colonial Era to the Turn of the Twentieth Century (2002).


[2]. Stanley Karnow, In Our Image: America’s Empire In The Philippines 137 (New York, 1989).


[3]. Verisimo Vasquez Vilas v. City of Manila (1911).


[4]. Weems v. United States (1909).


[5]. Hawaii v. Mankichi (1903) and Dorr v. United States (1904).