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in order to the successful extension of our institutions, the reasonable presumption is that the limitations on the exertion of arbitrary power would have been made more rigorous.

After all, these arguments are merely political, and "political reasons have not the requisite certainty to afford rules of judicial interpretation."

Congress has power to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the government of the United States, or in any department or of ficer thereof. If the end be legitimate and within the scope of the Constitution, then, to accomplish it, Congress may use "all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution."

The grave duty of determining whether an act of Congress does or does not comply with these requirements is only to be discharged by applyin the well-settled rules which govern the interpretation of fundamental law, unaffected by the theoretical opinions of individuals.

Tested by those rules our conviction is that the imposition of these duties cannot be sustained.

Mr. Justice Harlan, dissenting:

I concur in the dissenting opinion of the Chief Justice. The grounds upon which he and Mr. Justice Brewer and Mr. Justice Peckham regard the Foraker act as unconstitutional in the particulars involved in this action meet my entire approval. Those grounds need not be restated, nor is it necessary to re-examine the authorities cited by the Chief Justice. I agree in holding that Porto Rico-at least after the ratification of the treaty with Spain-became a part of the United States within the meaning of the section of the Constitution enumerating the powers of Congress, and providing that "all duties, imposts, and excises shall be uniform throughout the United States."

In view, however, of the importance of the questions in this case, and of the consequences that will follow any conclusion reached by the court, I deem it appropriate without rediscussing the principal questions presented to add some observations sug gested by certain passages in opinions just delivered in support of the judgment.

In one of those opinions it is said that "the Constitution was created by the people of the United States, as a union of states, to be governed solely by representatives of the states," also, that "we find the Constitution speaking only to states, except in the territorial clause, which is absolute in its terms, and suggestive of no limitations upon the power of Congress in dealing with them." I am not sure that I correctly interpret these words. But if it is meant, as I assume it is meant, that, with the exception named, the Constitution was ordained by the states, and is addressed to and operates only on the staes, I cannot accept that view.

In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by Mr. Justice Story, said that "the Constitution of the United States was ordained and established, not by the states in their sovereign capacities but emphatically, as the preamble of the Constitution declares, by the People of the United States.'"

In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice Marshall, speaking for this court, said: "The government proceeds directly from the people; is 'ordained and established' in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of lib erty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention,* and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. government of the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. This government is acknowledged by all to be one of enumerated powers. It is the government of all; its powers are delegated by all; it represents all, and acts for all."

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Although the states are constituent parts of the United States, the government rests upon the authority of the people of the United States, and not on that of the states. Chief Justice Marshall, delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed. 257, 293, said: "That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests

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is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects and to many purposes, a nation; and for all these purposes her gov ernment is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for those objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory."

In refernce to the doctrine that the Constitution was established by and for the states as distinct political organizations, Mr. Webster said: "The Constitution itself in its very front refutes that. It declares that it is ordained and established by the People?

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which is conceded, that power was not hampered by the constitutional provisions;" that if "we assume that the territorial clause of the Constitution was not intended to be restricted to such territory as the United States then possessed, there is nothing in the Constitution to indicate that the power of Congress in dealing with them was intended to be restricted by any of the other provisions;" and that "the execuive and leg

of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states. But it pronounces that it was established by the people of the United States in the aggregate. Doubtless, the people of the several states, taken collectively, constitute the people of the United States. But it is in this their collective capacity, it is as all the people of the United States, that they es-islative departments of the government have tablished the Constitution."

In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express words or by implication, that the national government is a government of or by the states in union, and that the prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying that, like the government created by the Articles of Confederation, the present government is a mere league of states, held together by compact between themselves; whereas, as this court has often declared, it is a government created by the People of the United States, with enumerated powers, and supreme over states and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national government is in any sense a compact, it is a compact between the People of the United States among themselves as constituting in the aggregate the political community by whom the national government was established. The Constitution speaks, not simply to the states in their organized capacities, but to all peoples, whether of states or territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103.

for more than a century interpreted this silence as precluding the idea that the Constitution attached to these territories as soon as acquired."

These are words of weighty import. They involve consequences of the most momentous character. I take leave to say that if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system of government will be the result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism.

Although from the foundation of the gov ernment this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martinv.Hunter, 1 Wheat. 326,331,4 L. ed. 102, 104) we are now informed that Congress possesses powers outside of the Constitution, and may deal with new erritory, acquired by treaty or conquest, in the same manner as other nations have been accustomed to act with respect to territories acquired by them. In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our gov. ernment, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical gov

In the opinion to which I am referring it is also said that the "practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest only when and so far as Congress shall so direct;" that while all power of government may be abused, the same may be said of the power of the government "under the Constitution as well as outside of it;" that "if it once be conceded that we are at liberty to acquire foreign territory, a presumption arises that our power with respect to such territories is the same power which other nations have been accustomed to exercise with respect to territories acquired by them;" that "the liberality of Congress in legislating the Constitution into all our contiguous territories has undoubtedly fostered the im-ernments. Surely such a result was never pression that it went there by its own force, contemplated by the fathers of the Constibut there is nothing in the Constitution itself tution. If that instrument had contained a and little in the interpretation put upon it, word suggesting the possibility of a result to confirm that impression;" that as the of that character it would never have been states could only delegate to Congress such adopted by the people of the United States. powers as they themselves possessed, and as The idea that this country may acquire terri they had no power to acquire new territory, tories anywhere upon the earth, by conquest and therefore none to delegate in that con- or treaty, and hold them as mere colonies or nection, the logical inference is that "if Con- | provinces,-the people inhabiting them to gress had power to acquire new territory, enjoy only such rights as Congress chooses

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to accord to them,-is wholly inconsistent leaving unimpaired, to the states or the with the spirit and genius, as well as with People, the powers not delegated to the nathe words, of the Constitution. tional government nor prohibited to the

The idea prevails with some indeed, it states. That instrument so expressly de found expression in arguments at the bar-clares in the 10th Article of Amendment. that we have in this country substantially It will be an evil day for American liberty or practically two national governments; if the theory of a government outside of the one to be maintained under the Constitu- supreme law of the land finds lodgment in tion, with all its restrictions; the other to our constitutional jurisprudence. No highbe maintained by Congress outside and in- er duty rests upon this court than to exert dependently of that instrument, by exercis-its full authority to prevent all violation ing such powers as other nations of the of the principles of the Constitution. earth are accustomed to exercise. It is one Again, it is said that Congress has asthing to give such a latitudinarian construc- sumed, in its past history, that the Constitution to the Constitution as will bring the tion goes into territories acquired by purexercise of power by Congress, upon a par- chase or conquest only when and as it shall ticular occasion or upon a particular sub- so direct, and we are informed of the liberject, within its provisions. It is quite a ality of Congress in legislating the Constitu different thing to say that Congress may, tion into all our contiguous territories. This if it so elects, proceed outside of the Consti- is a view of the Constitution that may well tution. The glory of our American system cause surprise, if not alarm. Congress, as of government is that it was created by a I have observed, has no existence except by written constitution which protects the peo- virtue of the Constitution. It is the creaple against the exercise of arbitrary, unlim- ture of the Constitution. It has no powers ited power, and the limits of which instru- which that instrument has not granted, exment may not be passed by the government pressly or by necessary implication. I conit created, or by any branch of it, or even by fess that I cannot grasp the thought that the people who ordained it, except by amend- Congress, which lives and moves and has ment or change of its provisions. "To what its being in the Constitution, and is consepurpose," Chief Justice Marshall said in quently the mere creature of that instruMarbury v. Madison, 1 Cranch, 137, 176, 2 L. ment, can, at its pleasure, legislate or exed. 60, 73, "are powers limited, and to what clude its creator from territories which were purpose is that limitation committed to writ-acquired only by authority of the Constituing, if these limits may, at any time, be passed by those intended to be restrained? By the express words of the Constitution, The distinction between a government with every Senator and Representative is bound, limited and unlimited powers is abolished if by oath or affirmation, to regard it as the those limits do not confine the persons on supreme law of the land. When the constiwhom they are imposed, and if acts prohib-tutional convention was in session there was ited and acts allowed are of equal obligation."

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much discussion as to the phraseology of the clause defining the supremacy of the ConstiThe wise men who framed the Constitu- tution, laws, and treaties of the United tion, and the patriotic people who adopted States. At one stage of the proceedings the it, were unwilling to depend for their safety convention adopted the following clause: upon what, in the opinion referred to, is de- "This Constitution, and the laws of the scribed as "certain principles of natural jus-United States made in pursuance thereof, tice inherent in Anglo-Saxon character, and all the treaties made under the authorwhich need no expression in constitutions ority of the United States, shall be the supreme statutes to give them effect or to secure de- law of the several states and of their citizens pendencies against legislation manifestly and inhabitants, and the judges of the sevhostile to their real interests." They pro- eral states shall be bound thereby in their ceeded upon the theory-the wisdom of decisions, anything in the constitutions or which experience has vindicated-that the laws of the several states to the contrary only safe guaranty against governmental notwithstanding." This clause was amended, oppression was to withhold or restrict the on motion of Mr. Madison, by inserting after power to oppress. They well remembered the words "all treaties made" the words "or that Anglo-Saxons across the ocean had at- which shall be made." If the clause, so tempted, in defiance of law and justice, to amended had been inserted in the Constitutrample upon the rights of Anglo-Saxons on tion as finally adopted, perhaps there would' this continent, and had sought, by military have been some justification for saying that force, to establish a government that could the Constitution, laws, and treaties of the at will destroy the privileges that inhere in United States constituted the supreme law liberty. They believed that the establish- only in the states, and that outside of the ment here of a government that could ad- states the will of Congress was supreme. minister public affairs according to its will, But the framers of the Constitution saw the unrestrained by any fundamental law and danger of such a provision, and put into without regard to the inherent rights of free- that instrument in place of the above clause men, would be ruinous to the liberties of the the following: "This Constitution, and the people by exposing them to the oppressions laws of the United States which shall be of arbitrary power. Hence, the Constitu- made in pursuance thereof, and all treaties tion enumerates the powers which Congress made, or which shall be made, under the auand the other departments may exercise, thority of the United States, shall be the su

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preme law of the land; and the judges in | tutions be brought within the operation of every state shall be bound thereby, anything the Constitution, is a matter to be thought in the constitution or laws of any state to of when it is proposed to acquire their the contrary notwithstanding." Meigs's territory by treaty. A mistake in the acGrowth of the Constitution, 284, 287. That quisition of territory, although such acquithe convention struck out the words "the su-sition seemed at the time to be necessary, preme law of the several states," and in- cannot be made the ground for violating the serted "the supreme law of the land," is a Constitution or refusing to give full effect fact of no little significance. The "land" re- to its provisions. The Constitution is not ferred to manifestly embraced all the peo- to be obeyed or disobeyed as the circumstanples and all the territory, whether within or ces of a particular crisis in our history may without the states, over which the United suggest the one or the other course to be States could exercise jurisdiction or author- pursued. The People have decreed that it ity. shall be the supreme law of the land at all times. When the acquisition of territory becomes complete, by cession, the Constitu tion necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make "concessions" that are inconsistent with its provisions. The authority to make such concessions implies the existence in Congress of power to declare that constitutional provisions may be ignored under special or embarrassing circumstances. No such dispensing power exists in any branch of our government. The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies. If the Constitution is in force in any territory, it is in force there for every purpose embraced by the objects for which the government was or dained. Its authority cannot be displaced by concessions, even if it be true, as asserted in argument in some of these cases, that if the tariff act took effect in the Philippines of its own force, the inhabitants of Mandanao, who live on imported rice, would starve, because the import duty is many fold more than the ordinary cost of the grain to them. The meaning of the Constitution cannot de

Further, it is admitted that some of the provisions of the Constitution do apply to Porto Rico, and may be invoked as limiting or restricting the authority of Congress, or for the protection of the people of that island. And it is said that there is a clear distinction between such prohibitions "as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only throughout the United States' or among the several states." In the enforcement of this suggestion it is said in one of the opinions just delivered: "Thus, when the Constitution declares that 'no bill of attainder or er post facto law shall be passed,' and that no title of nobility shall be granted by the United States,' it goes to the competency of Congress to pass a bill of that description." I cannot accept this reasoning as consistent with the Constitution or with sound rules of interpretation. The express prohibition upon the passage by Congress of bills of attainder, or of ex post facto laws, or the granting of titles of nobility, goes no more directly to the root of the power of Congress than does the express prohibition against the imposition by Congress of any duty, impost, or excise that is not uniform throughout the United States. The opposite theory, I take leave to say, is quite as extraordinary as that which assumes that Congress may ex-pend upon accidental circumstances arising ercise powers outside of the Constitution, and may, in its discretion, legislate that instrument into or out of a domestic territory of the United States.

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out of the products of other countries or of this country. We cannot violate the Constitution in order to serve particular interests in our own or in foreign lands. In the opinion to which I have referred it this court, with its tremendous power, must is suggested that conditions may arise when heed the mandate of the Constitution. No the annexation of distant possessions may be one in official station, to whatever departdesirable. "If," says that opinion, "those ment of the government he belongs, can dispossessions are inhabited by alien races, dif- obey its commands without violating the ob fering from us in religion, customs, laws, ligation of the oath he has taken. By methods of taxation, and modes of thought, whomsoever and wherever power is exercised the administration of government and jus- in the name and under the authority of the tice, according to Anglo-Saxon principles, United States, or of any branch of its gov may for a time be impossible; and the ques-ernment, the validity or invalidity of that tion at once arises whether large concessions which is done must be determined by the ought not to be made for a time, that ulti- Constitution. mately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action." In my judgment, the Constitution does not sustain any such theory of our governmental system. Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our insti

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In De Lima v. Bidwell, just decided, 181 U. S. ante, 743, 21 Sup. Ct. Rep. 743, we have held that, upon the ratification of the treaty with Spain, Porto Rico ceased to be a foreign country and became a domestic territory of the United States. We have said in that case that from 1803 to the present time there was not a shred of authority, except a dictum in one case, "for holding that a district ceded to and in possession of

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the United States remains for any purpose | United States. This is a distinction which a foreign territory;" that territory so ac- I am unable to make, and which I do not quired cannot be "domestic for one purpose think ought to be made when we are endeavand foreign for another;" and that any oring to ascertain the meaning of a great injudgment to the contrary would be "pure strument of government. judicial legislation," for which there was no warrant in the Constitution or in the powers conferred upon this court. Although, as we have just decided, Porto Rico ceased, after the ratification of the treaty with Spain, to be a foreign country within the meaning of the tariff act, and became a domestic country,-"a territory of the United States," it is said that if Congress so wills it may be controlled and governed outside of the Constitution and by the exertion of the powers which other nations have been accustomed to exercise with respect to territories acquired by them; in other words, we may solve the question of the power of Congress under the Constitution by referring to the powers that may be exercised by other nations. I cannot assent to this view. I reject altogether the theory that Congress, in its discretion, can exclude the Constitution from a domestic territory of the United States, acquired, and which could only have been acquired, in virtue of the Constitution. I cannot agree that it is a domestic territory of the United States for the purpose of preventing the application of the tariff act imposing duties upon imports from foreign countries, but not a part of the United States for the purpose of enforcing the constitutional requirement that all duties, imposts, and excises imposed by Congress "shall be uniform throughout the United States." How Porto Rico can be a domestic territory of the United States, as distinctly held in De Lima v. Bidwell, and yet, as is now held, not embraced by the words "throughout the United States," is more than I can understand.

There are other matters to which I desire to refer. In one of the opinions just delivered the case of Neely v. Henkel, 180 U. S. 119, ante, 302, 21 Sup. Ct. Rep. 302, is cited in support of the proposition that the provision of the Foraker act here involved was consistent with the Constitution. If the contrary had not been asserted I should have said that the judgment in that case did not have the slightest bearing on the question before us. The only inquiry there whether Cuba was a foreign country or territory within the meaning, not of the tariff act, but of the act of June 6th, 1900 (31 Stat. at L. 656, chap. 793). We held that it was a foreign country. We could not have held otherwise, because the United States, when recognizing the existence of war between this country and Spain, disclaimed "any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof," and asserted "its determination, when that is accomplished, to leave the government and control of the island to its people." We said: "While by the act of April 25th, 1898, declaring war between this country and Spain, the President was directed and empowered to use our entire land and naval forces, as well as the militia of the several states, to such extent as was necessary to carry such act into effect, that authorization was not for the purpose of making Cuba an integral part of the United States, but only for the purpose of compelling the relinquishment by Spain of its authority and government in that island and the withdrawal of its forces from Cuba and Cuban waters. We heard much in argument about the The legislative and executive branches of the "expanding future of our country." It was government, by the joint resolution of April said that the United States is to become 20th, 1898, expressly disclaimed any purpose what is called a "world power;" and that if to exercise sovereignty* jurisdiction, or conthis government intends to keep abreast of trol over Cuba 'except for the pacification the times and be equal to the great destiny thereof,' and asserted the determination of that awaits the American people, it must be the United States, that object being accom allowed to exert all the power that other na-plished, to leave the government and control tions are accustomed to exercise. My an- of Cuba to its own people. All that has swer is, that the fathers never intended that been done in relation to Cuba has had that the authority and influence of this nation end in view, and, so far as the court is inshould be exerted otherwise than in accord- formed by the public history of the relations ance with the Constitution. If our govern- of this country with that island, nothing has ment needs more power than is conferred been done inconsistent with the declared obupon it by the Constitution, that instrument ject of the war with Spain. Cuba is none the provides the mode in which it may be less foreign territory, within the meaning of amended and additional power thereby ob- the act of Congress, because it is under a tained. The People of the United States military governor appointed by and repre who ordained the Constitution never sup- senting the President in the work of assistposed that a change could be made in our ing the inhabitants of that island to estabsystem of government by mere judicial inter-lish a government of their own, under which, pretation. They never contemplated any such juggling with the words of the Constitution as would authorize the courts to hold that the words "throughout the United States," in the taxing clause of the Constitution, do not embrace a domestic "territory of the United States" having a civil govern ment established by the authority of the

as a free and independent people, they may control their own affairs without interference by other nations. The occupancy of the island by troops of the United States was the necessary result of the war. That result could not have been avoided by the United States consistently with the principles of international law or with its obligations to the

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