The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-05-29
Circulation Statement.
The New Brown Constitution

The New brown Constitution
On any analysis Of the decisions Of
the Supreme Court on Monday. which
make the Constitution Of the United
States the pIaythfng of Congress, it
viii appear that this reversal of the
doctrines of the fathers and the philosO-
ply Of a century was not the work
Of the Supreme Court, but Of one Of
its members. Associate Justice Brown,
who, sineularIy enough, Is one Of the
four Supreme Court judges appointed
by President Harrison. Death merci-
fully has spared that great constitu-
tionaI lawyer and patriot the pain and
modification which he would feel on
this occasion were he alive.
Justice Brown, it Is useful to remem-
Der, Is pronounced imperiaIist, the
only fully confessed one of the nine
judges Yet 10 him was committed the
task CT writing and delivering the ma
jority opinion in the Downes case, the
crucial one in determining the Ques-
ton whether Congress is to be consid-
cred a creature of the Constitution
and strictly governed by its terms, pro-
visions. and prohibitions, as in the
past. or, in the future, the Constitu-
ton is to be held operative only where
it does not conflict with the viii or
whirn Of partisan majority in Con-
gress- The casting vote of Justice
Brown has made Congress in effect the
supreme constitutional authority. and
as f-responsfbly so as the British
House of Commons.
Posterity will wonder by what mental
processes the in-periaIistic umpire Of
the tribunal was able to declare in the
de Lima case that there is not a shred
Of authority for holding that a
district ceded to and in the possession
OF the United States remains for any
purpose a foreign country and then
reverse himself in tie Downes case, by
asserting that the Constitution did not
extend b newly acquired territory at
all Justice White attacks the Brown
reasoning in the declaration that the
effect Of the decisions amounts to this:
That Porto Rico was a part OF the
United States after the Treaty Of Paris.
and was rot a part of the United States
after the passage Of the Foraker act
an obvious reductio ad absurdum. The
sudden Brown saItation from the con-
stitutionaIism of the de Lima decision
to the imperialism of the Downes de-
cision fastens the paradox upon the
country as law not subject to appeal.
Thus upon the dictum Of man who
reasons in opposite directions on
two substantially identical propositions
American Institutions are changed in
a breath.
The majority opinion in the Downes
case was that after the passage Of the
Foraker act Porto Rico ceased to be
domestic territory within the revenue
and taxation clauses Of the Constitu-
ton Four Of the FIVE justices consti-
tuting the majority held that the Con-
stitution extends to all Territories. and
that any Of its applicable provisions,
including the Bill Of Rights, are in force
there The only question to consider, in
their view, is whether Porto Rico is q
part Of the United States in the sense
Of the revenue clause Of the Constitu-
ton. They admit that it has been, but
assert that it is not now.
This looks like the extreme of judicial
legislation. Who ever heard before that
the Constitution. once extended over
- American territory, can be expelled
from it By a tariff act? 1t is a new
and alarming doctrine
An interesting point in >:le develop
ment of the White-Gray- Shiras-4Ic-
Kenna argument is the contention that
Porto Rico is not a part Of the United
States. in the above sense, because
the treaty making power, consisting Of
the President and the Senate, cannot
incorporate territory into the United
States without the consent Of Congress.
express or implied. In the case Of Porto
Rico 1t is held that Congress has not
given such consent
Here We probably find the reason for
the failure Of the court 10 hand down
any decision in the Philippine tariff
case Of Pepke. Waving the point that
the Foraker law was itself an implied
consent TO the Incorporation of terri
tory which, admittedly, was under the
aegfs Of the Constitution at the time
Of its passage, how does the matter
stand as regards the Philippines? There
the treaty-making power bought the
archipelago from Spain for twenty mil
lion dollars, and asked Congress to ap-
propriate the money necessary to per-
feet the title. Congress did 50, and,
thereby, expressly consented to the in
corporation Of the possession into the
national domain. Reading the opinion
Of the court in the de Lima. case. Jus