the States is read out of the Constitution, upon the theory that the "United States" covered by the Constitution comprises the States of the Union alone, is as harsh and artificial as that of the most strict constructionists of the old school, whom the new school resembles in denying the national and commercial unity of all who owe allegiance to the republic. And the new school is subject to a reproach not imputable to the old: It reverses the great rule of the common law by making every presumption against the individual and in favor of the state, for it attributes to the Federal Government absolute dominion over all persons and property lying beyond what it is pleased to call the "United

States" of the Constitution. The "United States," whose people framed the Constitution, and retained for themselves and the States all powers not delegated to the Federal Government are, unquestionably, the States of the Union only. These States and their people wield the whole political power of the republic.1 Unquestionably the Constitution contains clauses relating exclusively to the States either in terms or by necessary implication. Other clauses embody principles of universal value and unrestricted range, and these are operative throughout the larger "United States" described by Marshall as "our great republic, which is composed of States and "Territories. The District of Columbia, or the Terri"tory west of the Missouri, is not less within the "United States, than Maryland or Pennsylvania."'

1 See infra, p. 70.

2 Loughborough v. Blake, 5 Wheaton 317, 319.

That the Power of the United States over Annexed Territory is the Same as that Possessed by Other Nations

The most popular argument for withholding the Constitution from the Philippines is that the United States are equal to any other nation in power and resource, and, therefore, are competent to deal with the islands as another nation might under the circumstances. Deferring to this opinion for the moment, let us inquire whether nations whose rank and experience invite, apparently, our profitable study of their expansion policies are accustomed to do what we are urged to do; namely, to divide national territory into sections distinguished organically by the presence of effective constitutional restraints on governmental power in the one, and the absence of such restraints in the other.

The colonial policies of Germany, Italy, and Japan are in the experimental stage; and we shall not find a model in the exploitation of Java by Holland.

Constitutional questions, in the Western sense, are practically unknown in Russia, whose inhabitants are classified as the Czar-and the others. Each acquisition of territory means simply the enlargement of the Czar's dominions and the increase of his subjects.

The first French republic professed to carry the French ideals of liberty, equality, and fraternity to its neighbors in Europe, and the present republic affects the same office in its colonies. It is not material to determine the value of these ideals, or how nearly they are realized. It is sufficient for our

purpose to know that the French Constitution is not restricted, in theory, to France in Europe. And Algeria, French India, Mauritius, Réunion, and Guadeloupe, in sending senators and deputies to the national legislature, enjoy political rights denied to the colonies of Great Britain and the territories of the United States.

The colonial policy of Great Britain is especially commended for our imitation, but it will appear that organic equality is the constitutional theory in the British Empire, and not discrimination. For the will of Parliament is the organic law of the British Empire, whose parts are united by their common subjection to it, and Parliament presides over the scattered lands and the polyglot people with equal and unfettered power. England and the Gold Coast are integral parts of this empire: 1 The citizen of London and the native of India are on an equal footing before an authority that acknowledges no legal constraint. The opportunist colonial policy so cleverly displayed in the administration of the Queen's dominions beyond the sea is but a manifestation of a force quite as supreme in the British Islands. The organic law of the United States is the written Constitution, and so long as its broad guaranties run throughout the national territories all the people are equal before the law - an equality in harmony with the British theory. But were these guaranties circumscribed, all would not be equal; there would be the law of the Constitution for some, the pleasure of Congress for others — an inequality in marked contrast to the British theory.

1 See supra, p. 21.

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