The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-01-31
CONSTITUTION AND FLAG.
Does the First Follow the second.-
Judge Taylor VS.. General Harrison.

To the Editor Of the indianapolis Journal:
Two propositions confront us. each adj
vocated by the above gentlemen, two of
the brightest minds in Indiana Judge Tay-
Tor says that our foreign territory is both
acquired and governed by virtue of our
national sovereignty and according to in
ternational law less the limitations of the
United State Constitution so far as ap-
plicable. General Harrison says right to
the contrary and that we as a ma
ton can only deal with such territory ac-
cording to the Constitution of the United
States. In popular language, that means
that the Constitution follows the flag, and
that we can only do In Porto Rico. for
example. what We can do in Arizona.
OF these two theories that of Judge Tay-
Tor is certainly the most reasonable. We
have never. prior to 1898, had any foreign
war to speak of, and never before had to
deal with territory separated by wide
oceans inhabited by semi-uncivilized people
and acquired by conquest. But the ques-
tons involved are not so new as Judge
Taylor seems to think. We fought an6
settled similar problems during the great
rebellion of 1S61-65 and subsequent years
constitutional powers of the United States
government. The emancipation proclama-
ton during the war found its only war;
rant in international law. The Democratic
party rightfully denounced the reconstruc-
ton measures and the post-bellum military
governments of the South as unconstitu-
tional Both, however, were strictly in
accordance with the well-defined law of
nations. Technically right, so far as con-
stitutionality was concerned, the Demo-
Gratis. however, were never more wrong than
in their opposition to these great meas
ures.
Notice Judge Taylor's so far as ap-
plicable,' for he comedies that portions of
our United States Constitution, as. for
example, trial by jury, are local to the
United States. He proposes to make the
United States Supreme Court the judge
of how far the limitations of our national
Constitution apply in the exercise of our
extraconstitutional sovereignty over Porto
Rico and the PHILIPPINES. This is strictly
according to almost immemorial prece-
dents.
and to me, at least, his reasoning is very
unsatisfactory. When his Ann Arbor
speech was first publish portions of 1t
seemed so absurd that its author laid it
upon the reporters. Since then he has
revised his speech and published it in the
North American Review, so that this mag
azne article may be taken as expressing
his final reasons for his doctrine that the
Constitution follows the flag. General Har-
risons main proposition is that as Con-
gress and the executive are both crea-
lures of the Constitution, they can only
do what the Constitution permits them
TO do, either separately or by necessary
implication. But, Judge Taylor points
out, both the executive and Congress for
the last century have been constantly do
ing exactly the opposite, for example. in
the Louisiana purchase and the recon-
struction laws, and then leaving the United
States Supreme Court to settle the legal
questions at their leisure. By the treaty
of Paris we acquired the Philippines and
Porto Rico under the provisions of inter
national law, and by virtue of our United
under this theory, made Congress the Judge
of what the status of these islands should
be, and whether they should be held as
conquered territory under military or civil
and constitutional law.
General Harrison makes this amazing
statement, both In his Ann Arbor speech
and in his magazine article: That If the
Constitution does not follow the flag. then
the constitutional rights of these territor-
les so acquired under the treaty of Paris
will be creatures of statute, and that a
subsequent Congress may take away
rights. constitutional or otherwise. which
a prior Congress has granted. Did 1t
never occur TO General Harrison that the
enfranchisement of a people or of per-
sons is one and comparatively easy
thing, while their disfranchisement is an
entirely opposite and very difficult thing,
and that for the most part, thing be-
yond the power of Congress to 40? Only
one instance of the loss of great con-
stitutional rights to considerable num-
as can recall in our history. and that
was by the great rebellion of 1851 Even
here constitutional amendments were re-
quired to make the loss effective.
Bourke Cockrans fanciful division of a
nation into either citizen or subject ap-
parently gives General Harrison as much
trouble as his inability to classify the
Philippines into either State or Territory.
But under Judge Taylors broader views
of our powers of national sovereignty these
petty difficulties disappear. For all prac-
teal purposes the inhabitants of the Phil
ippines may be simply described as Fill
pinos.
General Harrison points out twelve
frightful things-raw heads and bloody
bones--which Congress might do in the
Philippines if the Constitution does not
create General Otis Duke of LuZon. AS
Congress is a creature of the Constitution,
and one of its limitations is it's inabil-
ity to create titles of nobility, such fears
need not keep awake nights. Judge
Taylor's proposition, above cited. COM
pletely eliminates these twelve frightsui
possibilities that give General Harrison
so much trouble.
THESE questions are now De1Ore the
United States Supreme Court. and will rea-
sonably soon be decided unless that great
and much overpraised tribunal shall see
fit to avoid them by falling back upon the
ingenious proposition Of Secretary Carlisle
in his argument before them, which steers
clear of these constitutional difficulties II
will be extremely interesting, however, If
the Supreme Court meets these questions
to know where we are at in this conflict
of such leading minds our two distin-
guished fellow-citizens.
d. p. BALDWIN.
Logansport, Ind, Jan. 30.