Libr. ·12-26-44 REPUBLIC OR EMPIRE? One of the various arguments which are advanced by the advocates and the supporters of the President's policy of territorial expansion is that the commercial interests of the United States imperatively demand that the markets of the old world should be thrown open to our surplus products. This is the principal ground upon which Senator Beveridge of Indiana, in his recent speech in the Senate, sought to justify the war which the Federal administration is now waging against the inhabitants of the Philippine Islands. As this speech is said correctly to represent the views of the President and of his coadjutors, it is worthy of more serious consideration than it would command were it merely an expression of the individual opinions of its author; and for that reason the writer of this article will inquire whether or not a colonial system can be inaugurated by the United States consistently with the fundamental principles upon which our Government was founded. Conceding for the purpose of this discussion the truth of all that the Senator has said concerning the great advantages which would accrue to our people by creating an increased demand for their manufactures and other products among the inhabitants of our so-called "new possessions, the question as to how a colonial system can be established or maintained under our Constitution as it now reads must first be considered; for no legislation by Congress which is contrary to the provisions of, or is forbidden by, that instrument can be valid and binding upon our citizens. If, after a careful examination thereof, it should appear that such a system is authorized thereby, we may then decide whether or not it ought to be adopted; and if we should be convinced that colonies would be advantageous to us we may proceed to establish them. If, however, that system is contrary to the Constitution, the first step to be taken in that direction must be to amend that instrument accordingly, if such an amendment can and will accomplish that result,a question which will be considered in a subsequent part of this article. It becomes necessary, therefore, to examine the nature of the Federal Government and to ascertain what are the powers which it may rightfully exercise. It is a fundamental principle of our political system that all sovereignty resides in and flows from the people and that no power can be rightfully exercised by any department of the Government which is not conferred upon it by the Constitution either expressly or by necessary implication. So important was this principle considered by the people of the United States that very soon after the Constitution was adopted Article X. of the Amendments thereto was submitted by Congress to the Legislatures of the several States and ratified by a sufficient number thereof to insure its adoption as a part of that instrument. That Article reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." As the Government established by the Constitution is one of limited scope, we are thus led to inquire whether or not there is any provision thereof which authorizes Congress to establish or to maintain colonies or provinces in various parts of the world. Before examining the provision thereof by which this power is alleged to have been conferred upon that body it is necessary to call the attention of the reader to the preamble thereto which specifies the purposes for which that instrument was ordained and established, as all legislation by Congress in order to be valid must be in accordance with, and not repugnant to, those purposes. That preamble is in the following words : We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." It will be perceived that according to its preamble the Constitution was ordained and established "for the United States of America" and not for any other part of the habitable globe. How, then, can it be extended beyond our boundaries unless it be so amended as to allow that to be done, even if that be possible? And as the Government instituted by it rests upon the consent of the governed, having only such powers as they have granted thereto, how can any other people be made subject to it without their consent also? But even if this could be done consistently with the body of the Constitution, the question would arise whether or not a colonial system is consistent with the purposes thereof as specified in the preamble thereto. It certainly cannot be reasonably contended that to govern any people without their consent and against their protests is "to form a more perfect Union" or "to establish justice." Neither can it be truthfully said that to do so is "to insure domestic tranquillity," "to provide for the common defence or "to promote the general welfare." "To secure the blessings of liberty to ourselves and our posterity" does not mean to secure those blessings to the people of other countries however desirable that may be; and still less does it justify us in depriving them of "the blessings of liberty." The purposes for which the Constitution was ordained and established, therefore, cannot be fulfilled by the establishment of a colonial system; and consequently, it is clearly unconstitutional; and for that reason, if for no other, the policy to which the President is now endeavoring to commit the citizens of the United States ought to be immediately abandoned. But admitting for the purpose of this argument that a colonial system is not inconsistent with the preamble to the Constitution, let us next inquire whether or not there is any clause thereof which provides for or authorizes it. The words of that instrument which are usually referred to by those persons who contend that Congress possesses sovereign power over the Territories are contained in Clause 2 of Section 3 of Article IV., which reads as follows: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State." The first power therein conferred upon Congress is "to dispose of the territory or other property belonging to the United States." What do these words signify? When speaking of territory or of land which cannot be destroyed, they must mean to give away, to cede, to sell or to lease; and no other meaning can properly be attached to them. The second power therein granted to Congress is "to make all needful rules and regulations" respecting said territory or or other property. It is a well-established rule that in construing a constitutional provision or a statute its words must always have the same meaning which they had at the time when they were used therein. Applying that rule to the construction of this clause, we are compelled to conclude that it had reference only to the land then owned by the Federal Government and not to those political communities which are now called "Territories," because at that time there were no such political communities claimed to be under our jurisdiction; and therefore, the word "territory" could not then have had the additional meaning which since has been and now is ascribed to it by those persons who contend that the clause confers upon Congress the power of instituting territorial governments over, or of legislating for, the inhabitants of the public domain. If the members of the Constitutional Convention had intended to apply this word to such Territories as might thereafter be established, they certainly would have used it in the plural instead of in the singular number, thereby removing all doubt as to the meaning which they intended to convey. On this point the Supreme Court has expressed its opinion in the case of United States v. Gratiot et al., 14 Peters, 526, 537, in which it said: “The term 'territory,' as here used, is merely descriptive of one kind of property and is equivalent to the word 'lands.' That the word "territory," as used in this clause means land only is made perfectly clear when the three following words "or other property" are considered, as they manifestly refer merely to one kind of property; and no one will seriously contend that the people who resided on the public domain at the time when the Constitution was adopted were "property belonging to the United States"; for if they had been so, Congress would have had the power "to dispose of" them, which means to give them away, to sell them into slavery, to banish them or to exterminate them; and it is unreasonable to believe that such a power as this is was intended to be conferred by the Constitutional Convention upon Congress. So to construe the clause is equivalent to saying that all of those people were then neither more nor less than slaves owned by the Federal Government which was not the case; although there were a few slaves who were the private property of certain citizens of some of the States in the Union. A construction of a constitutional provision which is so manifestly absurd as this is cannot be the correct one. But even if the convention had intended to establish and could have established the institution of slavery on the public domain, the Constitution as it now reads does not recognize but actually prohibits property in human beings and abolishes every form of slavery and involuntary servitude within the United States or any place subject to their jurisdiction except as a punishment for crime whereof the party shall have been duly convicted. It is true that here is a provision for "needful rules and regulations"; but these words cannot apply to persons but are limited to “the territory or other property belonging to the United States"; and therefore, they cannot authorize either civil or criminal legislation for the. inhabitants of the Territories. Rules and regulations respecting property cannot include laws for people; and all that Congress can rightfully do under this clause in reference to the public land is to * Article XIII. of the Amendments. |