The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-29
Circulation Staten ent-
The Fight .r the Constitution.

to make the American people believe that
the Constitution OF the United States is not
TO be interpreted according to its text, end
the Supreme Court decisions Of eighty
years past, but in accordance with
trusts and mouopo,ies. If the masses
can be coached into the idea that the Con-
stitution is no longer the basic Law of the
land. but is open to be ignored or dcfied by
q superior authority vested in C-ng7ess
and the Executive, the scheme which hes
been conceived foe a government by trusts
and for trusts may be possible of resliza-
ton. The first gun the Administrator hiss
ventared to fire in this direction is heard
in the address delivered before the Penn
sylvania Bar Association by Mr.. John K.
Richards. Solicitor General Of tbs United
States, at Cambridge Springs on Tuesday
evening. AS an appeal to persons hopeful
of seats on the Supreme Court beach afser
its enlargement, which would be natural
and certain result of trust victory next
autumn the address might probably be re-
garded as effective. As serious present.
ment OF the Administration cass TO a body
of men learned in the Law and versed n
the history Of judicial decisions ever since
the adoption Of the Constitution it mus be
considered as most weak and ills gical eff
fort.
Mr.. Richards spoke on The Constitution
and the New Territories We shall not
try 10 follow him through the maze of mis-
statement and Instrumentation with which
he attempted to support his position. Ii is
only necessary TO SHOW a few destructive
fai!acies in his argument to prove its fail
ure. In opening he SAID:
"The war with Spain. waged in the interest
oil humanity. was foT,Haly ended by the exchange
Of notifications of The Treaty of Paris, whereby
Spain ceGed TO the United States, Porto Rico,
Guam, and the Philippine Islands.
The acquisition these territories has brought
face to face with the serious problem OF how
TO govern them. Underlying it is the question
whether the Constitution iorbids to give them
the government they need. The fofmar is q
question OF policy. the latter question of law. "
1t will be observed that MIR. Richards,
like all other Administration apologists.
begins his treatment of the constitutional
question by begging it. There is not the
slightest contention on any hand that the
ritories the government they need On
the contrary, it provides amply for their
government in accordance with and under
its provisions, immuniuies. and prohibi-
tons. As Mr.. Richards says, the ques-
tion of the power of Congress over the
Territories is an important but not a new
one II was settled definitely and finally
in the Loughborough case in 1890. and in
q line OF decisions in harmony with the
opinion OF Chief Justice Marshall in that
case down TO the present time. Ii is not
true. as stated by Mr. Richards, that in
the matter of the Louisiana Purchase. MIR.
Jefferson and his advisers promptly took
the view that the limitations of the Con-
stitution applied only within the States
united under the Constitution. and that
Congress was entirely free TO govern
louisiana as the existing conditions re-
quired." What they did do was to see that
the provisions Of the treaty of cession
with France were not in conflict with the
Constitution, and then, from the moment
our sovereignty was established. Louis
lana became an integral part of the United
States, and the tariff and other national
barriers which had marked its recogni-
ton previously as foreign soil were swept
away. Neither in the instance of Louis
lana nor in that of any other territory
acquired by this country before the war
with Spain, has IL ever been asserted that
the ACQUISITION was not clearly subject
70 l-a Z.
have been considered as under the police
jurisdiction of Congress. derived from the
Constitution OF the doctrine of Tex proprio
vigore." Mr.. Richards says:
There is nothing obscure about this doctrine
II is plain and unmistaLable. The act OF cession
Is all powerful. its effects immutabie. As
the title passes, the territory becomes part u
the United States, and the Constitution, en
proprio yigore, does the rest.
This proposition Is true ii is stated or no:
true at all Either the mere act of cession makes
territory part Of the United States, or it does
not; either the Constitution extends As Cohs,itu.
ton Immediately and Of its own force or it docs
not extend Constitution at all Moreover, il
the affirmative be true. the treaty-mskins powey,
In acquiring territory, is necessarily limited 10
providing Tor the mere act OF cession. Ii can
make no terms: it cannot take for tffs purpose or
that: 1T can give no pledges; it can grant no
privileges; 1t can reserve questions f,r future
olkposuons an snort, although called the treaty.
making power, and granted without Limitation il
is stripped Of its proper funcions IL cannot t.eat
i, is lame. impotent. impossible, ridiculous"
Certainly there is nothing obscure about
this doctrine. !. there had been originally
a dozen famous Supreme Court decisions
they would have disposed OF the obscurity.
The mere act OF the cession of territory to
the United States, and the establishment
of its flag and sovereignty over II, does
States. TIE complaint offered by Mr.. Rich
ards and those whose interest il is to
agree with him, is that such construc-
ton of the Constitution Would prevent
Congress from making eItra-constitutional
terms as conditions precedent to cession
would prevent the Executive and the Sem
ate from STIMULATING that the inhabitants OF
q new territory like that of Porto Rico
should have their political status defined
and dictated BY Congress. and not by the
Il could, and it does. operate
exactly in that way The Constitution. we
admit, declares that treaties with foreign
powers. csnstftutionaliy ratified, become
The supreme Law of the land; but they do |
10 under the necessary implication that |
hey must not conflict with the funda- |
mental Law; and they have been declared |
" the Supreme Court in the Chinese ex-
illusion oases to be subject to instant ab-
,oGAtion by any act Of Congress conflict