The times., 1901-06-04
4 Conflict OF Reasoning.

The circumstance that Mr.. Justice
Brown reached his conclusion in the
Downes case by a line Of reasoning
different from that pursued by other
justices. .concurring with him does not
in Itself, prove or tend TO prove that
the final decision was wrong. There
may be many lines Of reasoning, all
tending to the same general conclusion,
and all essentially right But this can
only be when they are consistent with
each other. When they stand in fiat
contradiction it follows inexorably
that no more than one Of them can be
right. and it may very easily be that
all OF them are wrong.
The two principal opinions upholding
the Foraker-Payne tariff are those Of
Justices Brown and White, and II is
worthy of note that in his concurring
opinion Justice White states broadly
that he does so upon grounds which
were not only different from, but in
conflict with, the views expressed by
Justice Brown, and that he CWhite)
smoke for justices Shiras and Mckenna
as well. Thus it appears that between
these three. justices upon the one hand
and Justice Brown on the other there
/ is not merely difference. but posi-
! tive conflict of opinion upon vital
Doints-because the grounds" upon
which an opinion is based must, Of
! necessity, go to the very substance Of
/ the issue.
In the case under consideration it is
/ an easy matter TO perceive the main
/ point upon which Justice Brown is at
odds with his concurring colleagues,
and it is just as easy to see where he
/ is in direct conflict with himself. The
basic point in controversy was whether
/ the ratification of the Treaty of Paris
made Porto Rico American territory
within the meaning Of the Federal Con
stitution. Justices White, Shiras, and
McKenna held broadly that it did not;
! hence. that the clause providing for
/ uniform duties throughout the United
| states did not apply to Porto Rico. This
/ is consistent, although its soundness is
/ more than questionable. In fact, the
! same court had, within a very few
moments previously, decided that Porto
I which. If correct, clearly makes the
Foraker Payne tariff unconstitutional,
for the very obvious reason that the
Constitution expressly prohibits un-
equal duties in different parts OF the
! United States.
Mr.. Justice Brown constituted one Of
the majority Of the court thus declar-
ing Porto Rico to be a part of the
United States. Indeed, he read the
opinion of the court. and presumably
ne wrote it. This opinion stated the
doctrine that the Constitution follows
the flag" and did it so broadly that
the concurring justices seemed to re
gard il as unnecessary to supplement
it with any explanatory observations Of
their own. This case settles the doc
trine that the Constitution follows the
flag" as satisfactorily as any important
question can be settled by a bare ma
iority Of a court, for the reasoning is
clear and strong, and the five con
CURING justices are in perfect har-
nlony throughout.
If the decision Of the de Lima case
stood alone, there probably is not a
lawyer in the United States who would
hesitate a moment in giving his pro
fessionaI opinion that Porto Rico is a
part Of the United States, and covered
by the Constitution in all its length
and breadth But scarcely had Justice
Brown finished the reading Of this opin-
ion before he began the reading Of an
other, which not only 10 the mind OF
the ordinary professional lawyer or lay
man, but TO the minds Of his own col
! leagues upon the bench. amounted To
complete reversal Of himself.
There is. perhaps, nothing connected
with this series of insular cases that
will hereafter be made the subject OF
more adverse comment than the fact
that N the Downes case Mr. Justice
Brown position is altogether unsatis-
factory to all OF his colleagues-as wei
those who concur with him in the
. judgment as those who dissent. When