Evening star., 1901-10-29
What the United States Supreme
Court Has Really Decided.
CONSTITUTION FOLLOWS THE FLAG
But Does Not Push Ahead in Its
Path and Obstruct Its Progress.
NO NATIONAL IMPOTENCY

The Supreme Court of the United States
is again in session, and the expectation
that it will at an early day apply to the
Philippines the principles laid down in the
spring in the tariff decisions affecting Porto
Rico arouses new and lively public inter-
est in the meaning and effect of that tri-
bunafs previous deiiverance.
If the Supreme Court had mounted the
tripod Of the ambiguous Delphic oracle to
deliver it's opinions in the insular tarin
cases it's utterances could hardly have
elected more widely contradictory interpre-
tations..
Many bitter rhetorical tears have been
shed. for example, over the Supreme Courts
undermining assault upon the organic law
of the republic in declaring that the Consti
tuition does not follow the flag, or does not
extend to the territories, or that Congress
in legislating for our insular acquisitions
does so outside Of the Constitution. And
some who have vigorously defended and
justified the alleged offense have in effect
entered plea of guilty to this indictment
of the Supreme Court.
What has been assaulted and overthrown
in the insular decisions is not, however, the
Constitution, but the erroneous theory,
deep-rooted In some minds, that the nation
al power Of governing the insular acquisi-
tions territory appurtenant to the United
States could not be sustained by the Su-
preme Court without this predicted disaster
to the Constitution.
The Constitution Follows the Flag.
If there is any one point thoroughly set
tied by the opinions Of the justices in the
insular cases it is that the Constitution
follows the flag" and extends to the ter
ritories' and to every other place to which
the government itself extends. Eight out Of
nine justices agree on this point, and the
four of these eight justices who are num-
bered with the majority in sustaining the
government IN Downes VS.. Bidwell are more
emphatic and more elaborately explicit In
the statement Of this doctrine than their
four associates who dissent from the courts
decision In that case.
Justice Brown provides himself with al
tentative roads to the judgment reached by
the court. In one of these routes he moves
in reasonable harmony with his four asso-
ciates in the judgment of the court; the
other Is trodden by him alone. This soli-
tary way is that which follows the line Of
denial that the Constitution extends to the
territories and of assertion that our nsular
acquisitions are to be governed by Congress
outside of the Constitution.
Justice Brown in one branch Of his opin-
ion answers negatively "the broader ques-
tion' which he puts to himself whether the
revenue clauses of the Constitution extend
of their own force to newly acquired
territory. In his reasoning upon this ques-
tion Justice Brown uses expressions which
indicate his belief that our government has
powers "outside of the Constitution that
the Constitution 'fs applicable to the terri
ria ,Inr nd for
shall Direct" that the power Of Congress
'is not hampered by the constitutional pro-
Visions and that the idea is precluded
that the Constitution attached to these
territories as soon as acquired" 1t is these
expressions of the individual views of JUS
tice Brown and not the decision of the
Supreme Court which Justice Harlan, in his
dissenting opinion, vigorously assails, de-
claring that eff the principles thus an
nounced should ever receive the sanction of
a majority of the court, radical and mis-
chievous change in our system Of govern
ment will be the result We will in that
event be passing from the era Of constitu-
tional liberty guarded and protected by
written Constitution into an era Of legisla-
tive absolutism."
Justice Harlan indicates that we have not
yet reached this condition of absolutism,
and absolves the Supreme Courts decision
from the grave responsibility of taking US
there. We shall go over the precipice only
when Justice Browns individual views
shall receive the sanction Of a majority of
this court which in the light of the opin-
ions rendered in the insular cases means an
indefinite postponement of the catastrophe.
OF course, the four dissenting justices
may not be expected to abandon their op-
position to the exclusion of the Constitu-
ton from the territories; and the four con-
curing justices are cut off from hope of
conversion by the sweeping and uncompro-
missing declaration contained in their opin-
ion sustaining the courts judgment.
Justice White for himself Justices Shiras
and McKenna and for Justice Gray {t'in
substance agreeing), says:
"The government Of the United States
was born Of the Constitution and all pow
ers which it enjoys or may exercise must
be either derived expressly or by tmplica-
Every function of the government being
thus derived from the Constitution it fol-
lows that that instrument is everywhere
and at all times potential in so far as its
provisions are applicable.
"In some adjudged cases the power to
locally govern (tne territories) at discretion
has been declared to arise as an incident to
the right to acquire territory. In others it
has been rested upon the clause of Section
8, Article of the Constitution which vests
Congress with the power to dispose of and
make all needful rules and regulations re-
specting the territory or other property of
the United States But this divergence, If
not conflict of opinion, does not imply that
the authority Of Congress to govern the
territories is outside of the Constitution,
since in either case the right is founded on
the Constitution, although referred to diff
ferent provisions of that instrument. .
las Congress in governing the territories