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Our survey of foreign policy is of some practical interest inasmuch as it shows that the subjection of our new possessions to the organic law is not in line with the best precedents, but, more importantly, it should remind us how radically our government differs from the governments of Europe, including that of Great Britain. The assertion that the American people are a nation like the people of the British Empire is true in the sense that there is an ultimate authority in the republic substantially similar to that of the British nation. It is false in the suggested sense that this authority is lodged in Congress. Parliament is the British nation for every purpose. Congress is the American nation only for the purpose of exercising the powers delegated in the Constitution, and a brief consideration of the meaning and office of this Constitution will demonstrate the incompetency of Congress to rule territory in disregard of its provisions.
The Constitution is the foundation of the United States. Destroy it, and the United States would disappear,― the name and the thing alike,-leaving forty-five sovereign States, each entitled to a share in outlying territory. "The United States of America” is, in short, an artificial name given by the written law which created the thing it describes. This identification of our Constitution with our country is strikingly illustrated in the phrasing of the constitutional oath of office. It is customary in all countries to require of officials a formal profession of fidelity to the state they serve, and this is made to the person or thing that in local usage most closely represents the state. In accordance with this custom,
every official in the United States, from the President down, is bound by oath or affirmation to support the Constitution, and only the Constitution. And it is noteworthy that while some provisions of the Porto Rico Government Act are drawn, seemingly, as though the Constitution were not effective in the island, every official mentioned in the act is required to take the constitutional oath. This requirement is essential, but its presence discredits the theory of the inefficiency of the Constitution in Porto Rico, because he who swears to support it is entitled to its protection.
The Constitution is the ultimate source of authority for every lawful act of the Federal Government. The power behind the act may be expressed; it may be plainly implied; it may be claimed by implication so refined as to provoke conflicts of opinion: but it must be derived from the organic law. This conclusion has been constantly affirmed by the Supreme Court. It is the very corner-stone of our law of constitutional interpretation. And, as the Government must rely on the enabling provisions of the Constitution for authority to act at all, it must rule its conduct according to the restraining provisions. Commenting on government in general, and our own in particular, Chief Justice Marshall said: "This original and supreme will [of the people] organizes the gov"ernment, and assigns to different departments their respective powers. It may either stop here, or es"tablish certain limits not to be transcended by those "departments.
"The government of the United States is of the
"latter description. The powers of the legislature "are defined and limited; and that those limits may "not be mistaken, or forgotten, the Constitution is "written."1
The immeasurable difference between the limited powers of Congress and the omnipotence of Parliament is recognized by our courts,2 and it cannot be too strongly emphasized at this moment when a sudden admiration for English colonial policy has begotten a desire to imitate it.
"The powers of the British Parliament," says Mr. Justice Harlan, "furnish no test for the powers that may be exercised by the Congress of the United "States. Referring to the difficulties confronting "the Convention of 1787 which framed the present "Constitution of the United States, and to the pro"found differences between the instrument framed by "it and what is called the British Constitution, Mr. Bryce, an English writer of high authority, says in "his admirable work on the American Common"wealth: The British Parliament had always been, "was then, and remains now, a sovereign and con"'stituent assembly. It can make and unmake any "and every law, change the form of government or "the succession to the crown, interfere with the "course of justice, extinguish the most sacred pri"vate rights of the citizen. Between it and the people at large there is no legal distinction, because 'the whole plenitude of the people's rights and powers resides in it, just as if the whole nation "were present within the chamber where it sits.
1 Marbury v. Madison, I Cranch 137, 176.
2 See Van Horne's Lessee v. Dorrance, 2 Dallas 304, 307.
"In point of legal theory it is the nation, being the "'historical successor of the Folkmoot of our Teu"tonic forefathers. Both practically and legally, it is "to-day the only and the sufficient depository of the "authority of the nation; and is, therefore, within "the sphere of law, irresponsible and omnipotent.'1 "No such powers have been given to or can be ex"ercised by any legislative body organized under the "American system. Absolute, arbitrary power ex"ists nowhere in this free land. The authority for "the exercise of power by the Congress of the United "States must be found in the Constitution. What"ever it does in excess of the powers granted to it, "or in violation of the injunctions of the supreme law "of the land, is a nullity, and may be so treated by "every person. If the Parliament of Great Britain, her Britannic Majesty assenting, should "establish slavery or involuntary servitude in Eng"land, the courts there would not question its author"ity to do so and would have no alternative except "to sustain legislation of that character. A very "short act of Parliament would suffice to destroy all "the guaranties of life, liberty and property now enjoyed by Englishmen. 'What,' Mr. Bryce says, "are called in England constitutional statutes, such "as Magna Charta, the Bill of Rights, the Act of
Settlement, the Acts of Union with Scotland and "Ireland, are merely ordinary laws, which could be "repealed by Parliament at any moment in exactly "the same way as it can repeal a highway act or ""lower the duty on tobacco. Parliament,' he fur"ther says, 'can abolish when it pleases any institu1 Vol. I, p. 32.
"❝tion of the country, the Crown, the House of Lords, "the Established Church, the House of Commons, "Parliament itself.'1 In this country, the will of the "people as expressed in the fundamental law must "be the will of courts and legislatures. No court is "bound to enforce, nor is any one legally bound to "obey, an act of Congress inconsistent with the "Constitution." 2
If it seems astonishing that our government should not have the free hand of Great Britain in dealing with our new possessions, and this astonishment is much affected for the moment, we should remind ourselves that present difficulties merely accentuate an incapacity of our government not so radical from a British standpoint as are other incapacities to which we are well accustomed. For example, in the principal part of the republic, comprising the territory of the States, the Federal Government is incompetent to regulate the unit of society — the family; each State has its own laws of marriage, divorce, and legitimacy: It is incompetent to regulate the ownership and distribution of property, for these also are matters of State concern: It cannot designate the basis of popular government-the electorate; the voting strength of the republic is vested in forty-five electoral bodies, created by as many States, which are only forbidden to deny the suffrage to any person because of race, color, or previous condition of servitude: It cannot command revenues which are among the ordinary resources of
1 Vol. I, pp. 237, 238.
2 Robertson v. Baldwin, 165 U. S. 275, 296.
3 See infra, p. 55.