Page images



by an act of Congress. This argument attributes unlawful powers to the federal legislature. Congress is the creature of the Constitution, not its master; and is bound to obey it wherever it is supreme, not privileged to decide where, within the jurisdiction of the United States, it shall be supreme. Probably the argument is suggested by an improper estimate of legislative practice. Certain acts of Congress organizing Territories enact the law of the Constitution for the new district. The Supreme Court has recognized such legislation, but has never treated it as carrying the Constitution to a new field. When Congress authorizes a territorial legislature to make laws “not inconsistent with the Constitution and “laws of the United States,” it affirms “a condition “necessarily existing in the absence of express dec"laration to that effect."1 The acts in question are not of constitutional dignity. If the Constitution is in the territory by its own force they affirm an actual condition in a spirit of abundant caution; if it is not, they are merely repealable laws couched in the phrase of the Constitution, and Congress could withdraw any privilege granted by the so-called extension

of the Constitution. Of all the heresies that embarrass the fair discussion of the Philippine question few are more mischievous than the notion that Congress is competent to grant and, if to grant, to take away or withhold the Constitution at pleasure. And the President and Senate, acting as a treatymaking body, are quite as incompetent to play with the organic law from which their existence and their powers are derived.

1 Maynard v. Hill, 125 U. S. 190, 204.


[ocr errors]


Mr. Webster said in the Senate on February 24, 1849: “I do not say that while we sit here to make “laws for these Territories we are not bound by

every one of the great principles which are in“tended as general securities for public liberty. But “they do not exist in Territories till introduced by “the authority of Congress.” 1—Hence the suggestion that the Constitution will not be effective in the Philippines until Congress shall legislate for them. This suggestion is wholly impracticable, whether it be predicated upon casual enactments, or upon a statute establishing a civil government. Even Webster's name cannot dignify the proposition that constitutional guaranties demand respect only when the establishment of civil order under the auspices of Congress renders them less likely to be needed. A monstrous doctrine indeed that the President may lawfully rule United States territory during the inaction of Congress free from the restraints which, it is conceded, affect both himself and Congress after the territory shall have been duly organized! Even a King of England cannot do so much, for as Lord Mansfield said: “If the King (and when I say the King I always mean the King without the concur"rence of Parliament) has a power to alter the old "and to introduce new laws in a conquered country, "this legislation being subordinate, that is, subor“dinate to his own authority in Parliament, he

cannot make any new change contrary to funda“mental principles.”

It is noteworthy that they who deny, consistently,


1 Curtis's Life of Webster, ii, 366. 2 Campbell v. Hall, Cowper 204, 209.

the efficiency of the Constitution in our new possessions still maintain this opinion in regard to Porto Rico, although Congress has prescribed a government for it. Indeed, parts of the Porto Rico Government Act itself contemplate the exclusion of the Constitution from the island.

The foregoing arguments proceed upon the theory that the Constitution can have no expansive force of its own, but, like the generality of statute law, must gain efficiency in annexed territory through some act supplementary to the act of annexation. This theory is unsound. The range of the Constitution is not a

a political question, determinable by the President or Congress. These servants of the Constitution cannot decide in what circumstances or places its rules shall bind them. The range of the Constitution is a judicial question, determinable by construction of the instrument, and, did it not broaden with the expansion of the United States, nothing but an amendment could extend it beyond their original boundaries, except, perhaps, the admission of a new State.

The theory that the Constitution has a force of its own is, of course, subordinate to the primary consideration that a living constitution presupposes a living government. The Constitution framed by our Federal Convention could not vitalize itself. It was an abstraction until the States launched the government it contemplated, but then it became the inspiration and the guide of this government.

The theory of the self-extending force of certain provisions of the Constitution must be distinguished from a question of constitutional construction which,


sometimes, has been supposed to discredit it;' namely, whether a provision be so phrased as to require legislative action to make it efficient anywhere. To illustrate the distinction between this question and the theory of self-extension, and also a divergence of opinion in answering the question, I cite a once famous disagreement between federal and State courts. The Constitution of the State of Mississippi, adopted in 1832, contained this provision: “The introduction “of slaves into this State as merchandise, or for sale, “shall be prohibited from and after the first day of “May, 1833.” The Supreme Court of the United States decided that the provision did not execute itself, but required action by the legislature, especially the imposition of penalties for violation, before it should become effective. The State court, however, refused to follow the Supreme Court. It declared the provision to be self-executing, upon the following theory of constitutional obligation: The Constitution, said the Court, “is but the frame or skeleton “of a government, containing the general outline, “leaving the detail to be filled up in subordination "and auxiliary to the essential and fundamental principles thereby established. But it is not on that “account the less binding. It is from its very nature “and object the supreme law of the land, fixed and "unalterable, except by the power that made it. It "contains only certain great principles which are to “control in all legislation, and extend through the “whole body politic. These principles are of them“selves laws. Constitutions do not usually profess “to insure obedience by prescribing penalties; they “merely declare the rule or establish the principle, “which, being paramount, makes void whatever is

1 See Benton, Thirty Years' View, II, p. 714.

2 Groves v. Slaughter, 15 Peters 449.

repugnant to it. Its mandates or principles bind “by a moral power. .. General principles, thought “to be essential to a free government, are declared; “and (emanating from the sovereign authority) that “mere declaration imparts to them all the force of a

[ocr errors]
[ocr errors]

supreme law.”1

We are not concerned with the merits of this disagreement, though I think the State court was in the right. At all events, its masterly exposition of the obligatory force of constitutional principles generally is especially applicable to the Federal Constitution, whose principles, with few exceptions, do not belong in the second-rate class of recommendations depending for obligation upon the pleasure of the legislature, but are themselves laws enforcible by the courts.

That the Constitution is not Effective Beyond the

North American Continent

[ocr errors]

In the annual report of the Secretary of War for 1899 we read: “The people of the islands have no "right ... to assert a legal right under the pro“visions of the Constitution, which was established " for the people of the United States themselves, and to meet the conditions existing upon this continent"; and, further, that the Porto Ricans cannot demand that tariff duties shall be uniform throughout Porto Rico and our mainland, because the constitutional provision of uniformity was “solely adapted to the

1 Brien v. Williamson, 8 Mississippi 14, 17.

« PreviousContinue »