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 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; 1 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 prin'ciples 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 1 See Benton, Thirty Years' View, II, p. 714. 2 Groves v. Slaughter, 15 Peters 449. 34 LAW AND POLICY OF ANNEXATION "to insure obedience by prescribing penalties; they merely declare the rule or establish the principle, "which, being paramount, makes void whatever is "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 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 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. "conditions existing in the United States upon the "continent of North America." In other words, the Constitution is supposed to have been ordained for the present and future dominions of the United States upon the continent of North America, and nowhere else. The Preamble, it is true, entitles our republic "The United States of America," but I understand the suffix to be merely a descriptive term aptly chosen at the time, and not a legal restriction; otherwise we could not have lawfully annexed the Philippines. This "continental" theory is not even derived from the Preamble, for it restricts the Constitution to North America. Upon what basis of fact is a Constitution conceded to be adapted to the diverse physical, social, and economic conditions of our continental domain deemed to be essentially unfit for Porto Rico? Upon what principle of law can there be read into the Constitution this, or any other purely geographical limitation on its authority? That the Constitution was Ordained for the The most specious argument against the rule of the Constitution in the Philippines is that it was ordained for the States of the Union alone. This proposition was advanced in the debates in Congress on the acquisition of Louisiana in 1803, and on the question of slavery in California in 1849; it has been resurrected in recent discussions; but it has never gained even the consideration that the common assent of statesmen might give it before the courts. 1 The italics are mine. The proposition lacks the support of precedent. If the theory that the Constitution is operative in the States only has been consciously applied in administering outlying territory its applications have been infrequent and, presumably, inexcusable. There is no warrant for the boast that in denying the Constitution to our new possessions the Administration adds weight to a practical construction of the organic law which the courts should respect. The present policy of definitely excluding new territory from the great customs district of the republic violates precedent.1 Regarding the general guaranties of the Constitution in annexed territory, we find that in the case of Louisiana while the inhabitants complained that selfgovernment was not accorded at once, and that American rulers did not understand the local laws they were expected to administer, our government did not deny the efficacy of the guaranties, and the Supreme Court practically recognized their obligation in Bollman's case.2 General Wilkinson arrested Bollman in Orleans Territory (Louisiana) upon a charge of treason, and sent him to Washington for trial, all without civil warrant: The Supreme Court discharged him; and Judge Story termed the arrest "a very gross violation of the Fourth Amendment." 3 Whatever we did in Florida before we took possession under the completed treaty of cession was done in a foreign land, and so is immaterial to this inquiry. After the cession General Jackson was com 1 See infra, p. 79. 2 4 Cranch 75. 3 Commentaries, Sec. 1902, Note. |