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lation the people of the United States may bear to the Federal Government, it is not this. The dependent position of the Indians justified the Supreme Court in saying: “As long as these Indians remain a dis“tinct people, with an existing tribal organization, “recognized by the political department of the gov“ernment, Congress has the power to say with whom “and on what terms they shall deal, and what articles “shall be contraband."1 Whatever power Congress may have over domestic commerce, it is not this. It is a fair rule of interpretation that, when powers in respect of several subjects are assumed to be coextensive merely because of identity in the terms of the grants, the differentiation of one subject discredits the assumption as to the rest. But we need not stop here; for, in point of fact, the assumed parallel between domestic and foreign commerce is quite as illusory as in the case of Indian trade, and for the
a radical difference in the status of the parties.
The United States deal with a foreign nation as one sovereign with another. They have no connection, and, apart from the obligation of treaties, no conventional relation with the foreign state. Their attitude toward other nations is dictated by policy, tempered in some directions by treaty and international law; and they may discriminate between them — inclining toward one and away from another
as their interests require.
If Congress may interdict foreign commerce, it is by way of carrying out the policy of a sovereignthe United States —in opposition to, or disregard of
1U. S. v. 43 Gallons of Whisky, 93 U. S. 188, 195.
the policies of other sovereigns to whom it owes no legal duty in the premises.
Obviously a right to interdict, which may inhere in the power to regulate commerce with foreign or dependent nations cannot be attributed by analogy to the power to regulate our own. Because we may forbid intercourse with a foreign nation, essentially an unfriendly act despite any protestation to the contrary, and forbid private dealings with Indians in order to protect childish wards from the rapacity of traders, it does not follow that we may turn the weapon of embargo against our own countrymen, or treat them as children of a “great
Federal power over domestic commerce is distinguished from the neighbor subjects of foreign and Indian trade, and from that war power which justified non-intercourse legislation during our Civil War, because it relates to traffic among the, presumably, loyal people of a common country. It must be considered on its own merits. “ The Constitution,” says the Supreme Court, “does not provide that inter“state commerce shall be free, but, by the grant of “this exclusive power to regulate it, it was left free,
except as Congress might impose restraints.” ? This means that domestic commerce is not free in the sense of being private enterprise wholly beyond federal supervision. Federal power to regulate commerce is not limited to annulling State laws, and enjoining private acts that would hinder it. This, the passive side of the power, is maintained in the courts. The active side is expressed in legislation,
1 See The Reform, 3 Wallace 617.
and, while its range has not been definitely established, the nature of the subject must preclude its being extended to the point of interdiction. " It has "been said,” says Chief Justice Marshall, “that the “Constitution does not confer the right of inter“course between State and State.
That right "derives its source from those laws whose authority “is acknowledged by civilized man throughout the “ world. This is true. The Constitution found it "an existing right, and gave to Congress the power “to regulate it."1 The last sentence would mean something very different were it altered to read: "The Constitution found it an existing right, and " gave to Congress the power to interdict it"; and
” this confused proposition would so pervert the law as to defeat its true and most admirable purpose.
The right of intercourse mentioned by Marshall obtained among communities practically independent, for the Articles of Confederation were but “a rope of sand,” and it was because intercourse was seriously hampered by States exercising their sovereign powers of restriction that this clause was inserted in the Constitution. In fact, the need of commercial unity was the greatest incentive to the establishment of “the more perfect Union" assured by the Constitution. The States did not transfer to Congress the sovereign power of restriction which each possessed. They renounced these powers, left them in the air, and authorized Congress to maintain the freedom of trade established by their renunciation. To regulate domestic commerce, then, is to facilitate an intercourse placed beyond reach of prohibition, and, while regulations may in fact involve some restraint upon the conduct of particular intercourse, they have their warrant and purpose in the facilitation of all intercourse.
1 Gibbons v. Ogden, 9 Wheaton 1, 211.
VALUE OF THE CONSTITUTION IN NEW TERRITORY
In affirming the authority of the Constitution in the Philippines, I am far from anticipating the transformation of an Asiatic dependency of Spain into a well-ordered section of the United States by any magical power of written law. Constitutional rule will not prevail throughout the islands until the authority of the United States shall be as supreme in fact as it is in theory.
The gap between fact and theory, so marked in the Philippines, is not a novel circumstance in our history. The influence of the Constitution spread slowly throughout the vast domains we have annexed from time to time; isolated communities made their own laws; sparsely peopled regions had none. A Southern Confederacy once defied the Constitution, and, temporarily, suspended its active authority throughout a wide area; yet the Supreme Court said of an insurrectionary State: “She never escaped “her obligations to that Constitution, though for a “while she may have evaded their enforcement.”ı
These untoward conditions illustrate the general proposition that constitutional guaranties are not thoroughly efficient unless persons injured by their violation have recourse to competent tribunals for
1 Keith v. Clark, 97 U. S. 454, 461.
redress. How far such courts as may now sit in the islands are competent I do not discuss, for it may be admitted that until Congress shall authorize suitable tribunals constitutional rights will receive imperfect protection. But this admission must be made in regard to the whole republic. The only court named in the Constitution is the Supreme Court, whose original jurisdiction is strictly confined to “all cases affecting ambassadors, other public minis“ters and consuls, and those in which a State shall “be a party.
What inferior courts there shall be, what their jurisdiction, when and how their judgments involving the questions mentioned in the Constitution as reviewable by the Supreme Court shall be carried to this tribunal, are determinable by Congress, which cannot be forced to create a court, or directed in defining its jurisdiction, or prevented from abolishing it. Generally speaking, the people of the United States depend upon the facilities afforded by the Judiciary Acts for the orderly enforcement of their rights, and in saying this we suggest the high office of courts wherever justice is truly respected.
Before leaving the subject of the jurisdiction of courts it will be profitable to note a marked difference between the American and English systems. The Judicial Committee of the Privy Council affirmed an ancient rule when they said in Bishop Colenso's case: “It is the settled prerogative of the “ British Crown to receive appeals in all colonial
The royal prerogative, however, has 1 See Marbury v. Madison, 1 Cranch 137. 2 The Lord Bishop of Natal, 3 Moore P. C. C., N. S. 115.