The Washington times., 1901-09-24
The Insuinr Decisions.

Constitution. So far from having done
so, the action of the court has left the
general question more confused and
| perplexing than it was before. The de-
| cision of a great question of constitu-
! tional law by vote of five to four, is,
| at the best, rather unsatisfactory. 1t
would be so even if the reasoning OF
! the majority We're clear, strong, ana
! consistent for bare majorities are not
: always right. In the interest OF order
| their determination must be accepted
| as the rule of action until it can be
| lawfully changed; but viewed in the
| light of abstract reasoning, four JUS
! tices OF the Supreme Court are almost
as likely TO be right as five. When the
| augmentation of the four is thorough
ly harmonious and in line with the
| national policy for more than hundred
years, while of the five constituting the
majority only three agree in their rea-
soning, the remaining two being out
of accord with each other and with all
of their associates in everything ex-
cept the final conclusion, it would seem
that logically considered, the judgment
of the majority should carry less weight
than that of the minority. Evidently
| Justice Brown was not satisfied with
| the reasoning of Justice White, and II
/, is certain that the latter regarded the
! augmentation of Justice Brown as al
! together unsound. Practically Justice
Gray concurred in the judgment with
/ out arguing the questions upon their
merits, but it is quite clear that he was
not prepared to endorse either of the
| lines of thought by which his colleagues
reached their conclusion.
| But as before intimated, in logic and
| matters of opinion mere numbers are
not conclusive. There might easily be
| a case in which court would stand
eight to one, and the one be right. Such
| can hardly be, though, when the one
virtually straddles the issue and argues
! both ways. And when the decision
turns on the vote of a Justice who oc-
| cupies so anomalous a position it can
not but strengthen the doubt as to the
correctness of the judgment.
The action of the court, however is
| quite as unsatisfactory in its failure
definitely and comprehensively to set
| tie the status of the islands, as Ii is by
reasvII lins~-~--S-.-e --:-t--
and contradictory arguments of the
| Justices. 1t is generally claimed by
| those who uphold the foreign policy
now in force, that the courts action
sustains the doctrine that the "Consti-
tuition does not follow the flag" At the
same time it is admitted that some
parts of the Constitution do apply to
IT..
of Congress therein is not absolute.
1t is conceded that Congress cannot
pass an ex post facto law relating to the
Philippines, or grant title of nobility
in Porto Rico, or in short, do anything
| else that is prohibited by the great or
| ganic law of our national being. The
concession has the effect of complicat-
| ing the situation, for it leaves us in the
gravest doubt as to what Congress can
new possessions
The court itself only decided one
| point directly, and this is that the
! clause of the Constitution requiring du-
| ties to be uniform does not apply to
those Territories. Beyond that all is
| chaos. 1t is admitted that the islands
are not foreign territory. If they were,
| Congress would have 10 civil jurisdic-
| ton there at all. That is clear enough.
| 1t is also denied that the islands are
! American territory in the sense of be-
] ing an integral portion of the United
| States. They are given a sort of inter-
mediate or dual character; foreign for
| some purposes. domestic for others.
| Hence we are completely in the dark
| as to how the court will decide any
| other question that may arise in con-
| nection with them. We know nothing
| as to the legal status of the individual
| Porto Rican or Filipino. whether he is
| an American citizen or not. If the court
| should ultimately decide this question
in the affirmative. nearly all of the po-
| litical arguments in favor of the de-
| cision already rendered would fall to
| the ground. Almost without exception
the doctrine that the Constitution does
| not follow the flag is upheld upon the
| theory that the Filipinos are not fit for
American citizenship. There is nothing
| in any of the insular decisions from
which it can be gathered that the Porto
| Ricans are not to be deemed citizens,
while the Philippine case is still unde-
| termined.
The uncertainty as to what the Su-
| preme Court has settled is well illus
| trated by the court muddie in Hawaii.
In those islands the question arose as
| to whether during the period between
| the annexation of the islands and the
| establishment of a Territorial Govern
ment, a person accused of crime could
be lawfully prosecuted without an in
| dictment by a grand jury, or be con-
, victed by anything less than full jury
| of twelve. Circuit Judge Gear held
| that there must be both an indictment
and a full trial jury. The Supreme
| Court OF the islands reversed this rul
ing and held that the constitutional
| provisions did not apply to Hawaii dur
| ing that transition period. And now
Judge Estee OF the United States Court
at Honolulu has rendered a decision
sustaining the position of Circuit Judge
| Gear.
When the courts, composed presum-
ably of able 1urists, are thus at sea,
| how can 1t be otherwise than that the
! great lay public should be deeply per-
picked. The purpose of Supreme Court
decisions is to settle mooted questions
and settle them clearly. In these cases.
however, the court seems ex industria