An Interesting Constitutional Question.
On another page we print an article from the Springfield Republican reviewing briefly Judge Townsend’s opinion touching the status of Porto Rico in its relation to the Constitution. Referring to this article as it appeared in the Republican, ex-Senator Dawes raises these questions: “1. What is the true significance of the word ‘all’ in the last clause of the 3d section of Article IV. of the constitution, which reads as follows: ‘The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States?’ “2. What particular ‘rule’ or ‘regulation’ respecting territory belonging to the United States, Congress has not the power to make?” The Republican makes reply as follows: “Does the phrase ‘or other property’ refer to people or to communities of people who may chance to inhabit any territory of the United States? Were the framers of the constitution accustomed to speak of human beings as property or ‘other property?’ Did they even refer to the negro slave as property, in that great instrument? On the contrary, did they not speak of the slave as a ‘person,’ as ‘such persons,’ and as a person held to service or labor? (See section 9 of Article I. and section 2 of Article IV.) And hence does not the clause in question, ‘territory or other property belonging to the United States,’ relate to territory considered only as real property? In a strict construction of this clause no other meaning is possible, and everybody knows that as a matter of fact the clause referred to the unoccupied lands held or owned by the several states under their colonial charters, which were generally ceded to the United States prior to the adoption of the constitution of 1787. “Nevertheless, even conceding that the power of Congress to govern the territories flows from this clause, is the word ‘all’ to be taken as possessed of the sweep and force which absolves Congress from all constitutional restraints and limitations in dealing with388the territories? The constitutional interpretation of a century gives but one answer to this question. It is well stated by John Norton Pomeroy, a recognized authority, in his ‘Constitutional Law,’ a text-book which the United States government employs at the military academy, in the following: “But is Congress absolutely omnipotent over these districts and territories? Is it, like the British Parliament, bound by no limitations save those which are self-imposed? This cannot be; nor does the language of the constitution require a construction so much opposed to all our ideas of civil policy. The safeguards of individual rights—those clauses which preserve the lives, liberty and property of the citizens from the encroachments of arbitrary power, must apply as well to that legislation of Congress which is concerned exclusively with the District of Columbia or with the territories, as to that which is concerned with the states. The reasoning which leads to this conclusion is irresistible. * If it were thought necessary that Congress should be hedged round with restrictions while it is legislating for the inhabitants of the states, who may be partially protected by their local governments, how much more necessary that the same body should be restrained while legislating for the inhabitants of those districts and territories over which it has an exclusive control, an undivided sway.” “And we may add that Mr. Pomeroy belonged to the broadest sect in the school of loose constructionists. The precedents all support him in the above statement. “2. And as to the particular ‘rule’ or ‘regulation’ respecting territory which Congress has not the power to make, here are several: “It can make no rule or regulation respecting an establishment of religion or the free exercise thereof; or abridge the freedom of speech or press, etc. “It can make no rule which deprives any person of the right of trial by jury in cases where the value in controversy exceeds $20. “It can make no rule imposing excessive bail or fines or cruel and unusual punishments. “It can make no rule tolerating slavery, or tending to deprive a person of his life or liberty or property without due process of law. “It can make no rule or law sanctioning titles of nobility, or attainting objectionable politicians. These and much more. “And, finally, accepting Chief Justice Marshall’s definition of the term ‘United States,’ Congress can make no rule or law which destroys uniformity in duties, imposts and excises ‘throughout the United States,’ including all territory under its jurisdiction. “But Judge Townsend holds that Congress is hedged round by no such restrictions, or any other, in dealing with the territories. He is able to summon to his support in this extraordinary position not a single distinct precedent out of 112 years of constitutional interpretation, so far as we have been able to discover. We accordingly describe his decision as revolutionary. It will of course be passed upon by the higher courts, but even they will not settle the question for all time. “There will remain the appeal to the people, as in the Dred Scott cause. That decision wrote ‘property’ over the word ‘person’ in those sections of the constitution we have referred to; and we venture the prediction that the present attempt to write ‘property’ over the word ‘person,’ as he may be found in the territories, will fare as badly in the final judgment as did that earlier and quite similar effort.”