The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-06-28
WHAT SHALL BE b. TIE DEMO.
Crafts PLATFORM:
The Latest Insular Decision and OtheP
Matters In Relation to Future Politics.

Mankichi case, In which the several opinion,
OF the Justices Of the Supreme Court hav,
at last been officially published, was an
other semi-political contention growing
out OF the recent annexation of foreign
lands and their inhabitants. 1t leads by
an unfrequented but very interesting pail
into the party platforms OF next years
Presidential campaign. The question or
which 1t turned was narrow one, but there
, was the division Of to which has In recent
years been so frequent among the Justices
MIR. Justice Brown. speaking for the five
opened with the declaration that the ques
ton Ia simple. but the principles" applica'
bile to its answer are mixed and occult
That question was stated by him In two
differing forms. One was this:
In continuing the municipal legislation Of the Isl
ands mot contrary TO the Constitution of the United
States" was Intended to abolish. at once the cnm
mol procedure heretofore In force In the Islands,
The other form was this:
Is there any room for construction in this case O,
are the words Of the resolution so plain that con
s,rlctlon Is impossible.
Not contrary to the Constitution Of the
United States Those were the critical
words which it was adjudged were used
in metaphorical sense.
The majority, consisting OF White, Brown
McKenna, Holmes and Day, said there
was room for constructio but two OF
them, White and McKenna, placed their
concurrence in the judgment upon an addi-
tional reason which seemed to them more
fundamental. That divergence between
the two and the three OF the majority was
foreshadowed by Brown. who said the
Judgment OF the court Is to ~ had been
measured by the words mot contrary to
the Constitution" and there had not been
a reconsideration "of the questions which
arose in the 'insular tariff cases regarding
the power Of Congress to annex territory
without, at the same time, extending the
Constitution over it." White and McKenna
reconsidered those questions and put
thereon the reasons for their vote. Thereby
the case was projected forward into the
Presidential campaign OF 1904.
Holmes and Day, who were placed on
the bench after the decision of the insular
cases, sided with Brown and did not disclose
their attitude toward the position taken by
White and McKenna, which was that. as
Hawaii was not incorporated" till April
3d. 1900, although annexed two years before
as a part Of our country, the decision In
Downes Va. Bidwell controlled Mankichis
sentence Of imprisonment.
The opinions by White and McKenna
bark back to the insular tariff cases de-
cided two years ago. which made such
havoc with the opposition platforms Of the
previous year.
Memories are not tenacious nowadays
Of the details Of party politics. but the OPP
position platform Of 1910 did condemn the
purchasing Of distant islands whose inhabi-
governed "outside" Of the Constitution:
did declare that -the Constitution followed
the flag" into new acquisitions, and that
the Governments put over Porto Rico and
the Philippines were a bold and open vio-
lation OF the nations organic law Since
then the Supreme Court has, by S I'd !, adj
judged that, in what the Mckinley Admin
istration and Congress did in our insular
possessions after the treaty, they were
within their constitutional right, excepting
80 far as they treated Porto RICO in revenue
not then "a part" of the United States.
1t Ia not quite accurate to say that the
court declared that the Constitution did
not follow the flag" into the new islands.
1t did follow, but the applicable provistons
be scarcely discernible. With all the oon-
tinental Territories Of our country. the
to 4 judgment in Downes Va. Bdwell had
nothing to do. nor with previous treaties
OF cession. 1t did, however, repudiate
4tteranoes by Chief Justice Tane e in ar the
that the territorial clause Of the Constitu-
ton was confined to then existing territory;
that the United States cannot acquire
and establish colonies to be governed at
its pleasure: that no territorial government
can lawfully exist excepting In preparation
0tof
that the Constitution contemplated only
inohoate States and actual States, both
existing under applicable clauses OF the
Constitution.
The opinion OF fancy in 1883 left no place
in our political system for colonies, or de-
tendencies, beyond reasonable and neces-
sary interval, as in the case OF Louisiana,
between a ratification OF the treaty OF ces-
sion and enactment OF legislation for an
inchoate State In the form OF Territory.
Lima case that in the Louisiana acquisition
such interval extended from Dec, 80, 1903,
to March rs, 1904, but Mr.. Justice White, in
the Downes case. enlarged the interval
from Dec. 80, 1903. to the statute OF March
?, 1905. 1t was, however, conceded on all
precedent was in ls4s -debarted from to
certain extent" In the case OF California
and New Mexico, by the Mexican treaty
and by Folks Administ ration. in the sense
Of altogether excluding colonial per1od.
All three Of the presidents, In 1909 l64S and
1858, must be taken as Democratic.
The party conventions OF 1904 In oppo-
,ition 10 Mr.. Roosevelt's reelection will
have to consider that 3 to I opinion which
IN the Downee case said, in effect, that the
treaty enabled the President to
rule over the new islands. under his war
power, till Congress legislated that till
Congress distinctly, explicitly and BY apt
words Incorporated them into the Union.
Congress representing them and the people
IF the United Statee) could govern the
stands as 1t might deem beat, and that after
he islands and their people have been
II lie very doubtful whether
,r not Congress can sell or ALLEVIATE the
,oyeregntv OF the islands even to their
,wn Inhabitants. If selling or alienation
a to be done, it must be before inoorpora-
ion. Can Congress sell Maine to Great |
Britain?
In the acquisition OF California and New
Mexico, Polk intended q treaty incorporat- |
ng them Immediately, but In the acquisi- |
ion OF the Philippines and Porto Rico |
Mckinley intended and concluded treaty |
excluding immediate incorporation. and |
tipulating that either he or Congress could |
1,le them az colonies. or provinces, or Terri
cries. II Bryan and his friends did not
ike stloh a treaty. they need not have urged |
ts ratification. Mr.. Justice Brown In his
opinion pointed out that Polk
vent on the theory that California had
to his war rule after ratification
Il the treaty, whereas McKinley's theory
vas that the Constitution had impaired |