Such are the provisions, plain and unequivocal, of the constitution as it was originally adopted. But objection was made that the limitations of Art. I, Sec. 9, and Art. III. Sec. 2, Sub. 3, did not sufficiently safeguard the states, or the people thereof, against the improper exercise of the powers conferred in Art. I, Sec. 8, and in Art. III. Thereupon the first ten amendments were adopted to meet this objection, and it is historically correct to say that these amendments have the same force and effect, and no other, as if they had originally been adopted as a part of the provisos of Art. I, Sec. 9 and Art. III. Of the later amendments, the Fourteenth and the Fifteenth, are, with no straining of construction, but naturally and logically, to be regarded as a completion of the same purpose. The first section of the Fourteenth determines those who are citizens of the United States and of a state, and is mainly concerned in prohibiting the states from abridging the privileges of such persons. The other sections are plainly aimed at the states. The Fifteenth supplements the Fourteenth by preventing the disfranchisement of the citizens defined in the Fourteenth " on account of race, color or previous condition of servitude." The Thirteenth Amendment, on the other hand, is by its terms, made to apply not only to the states but to any place subject to the jurisdiction of the United States. Of all the provisions of the constitution this, therefore, is the only one that in terms, or by fair implication, limits the general grant of power to govern the territories or dependencies of the United States.* The conclusion is therefore but natural that Congress has all needful powers over the dependencies except that it cannot authorize or permit slavery to exist there. If the question were wholly a new one, to be determined with reference to our new conditions and unembarrassed by previous pronouncements, I venture to think that this conclusion would easily be reached by the courts. But it is said that the Supreme Court has already decided adversely to this contention, and has expressed a dictum adverse to it *With this example and purpose before them the Congress and the States adopted in the Fourteenth Amendment the phrase, "All persons born or naturalized in the United States," without a hint that it was intended to include other places subject to their jurisdiction, and the further phrase "citizens of the United States and of the state wherein they reside," without a suggestion that persons are citizens who reside outside the limits of a state. Of course the phrase "and subject to their jurisdiction" refers in this amendment to persons and not to places. in numerous cases. After a consideration of the cases cited to these propositions, I am ready to confess that the Supreme Court has, in several cases, given utterance to dicta to the effect that Congress is restricted by the constitutional limitations in its dealings with the territories, and has, in one case, actually decided that the constitution guarantees to the people of the District of Columbia a trial by jury in all criminal cases. But beyond this I can find no decision of the Supreme Court to the effect claimed-and, as for the dicta, while they express the opinion of judges from the point of view presented in the cases in which they were uttered, we are all aware that they will not be allowed to control a subsequent decision in which the court may find it possible and proper to take a contrary view. In order to understand the precise questions involved in these decisions and dicta, and to appreciate the precise questions that may arise should Congress undertake to establish a civil government for Porto Rico and the Philippines, let us arrange under appropriate heads all the restrictions upon congressional power found in the federal constitution and examine such pronouncements as have been made by the federal courts concerning them. They all fall under the following heads: (a) Citizenship; (b) Justice; (c) Revenue; (d) Bankruptcy; (e) Military Forces; (f) Titles of Nobility; (g) Freedom of Opinion and Speech; (h) Slavery. (a) Citizenship. I. The Congress shall have power. . . to establish an uniform rule of naturalization. . . . throughout the United States.—Art. I, sec. 8, sub. 4. 2. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.-Amend. XIV, sec. I. 3. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.-Amend. XV. 4. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.-Art. IV, sec. 2, sub. I. Under this head the first provision and the last may be passed over. I am sure there will be a general agreement that the last is by its terms a restriction upon the states and not upon the United States, and that as applied to the states it comprehends only those privileges and immunities which are in their nature fundamental, as protection by the government, the enjoyment of life and liberty with the right to acquire and enjoy property subject to such restraints as the government may justly prescribe for the public good.* It is now too plain for argument that when the word state is used in the constitution it refers to one of the members of the Union and does not include the District of Columbia or the territories.† Internationally it may be otherwise, and the word state in a treaty may include any political entity whose foreign affairs are conducted by the federal government. This distinction between the meaning of phrases as used in the constitution and the same phrases as used in international law is very important, though it has sometimes been overlooked by commentators. As to the first of the above provisions, it is proper to make two observations: First, I cannot conceive that we should be at all embarrassed by allowing the same persons to be naturalized in Porto Rico or the Philippines as in Florida or California; second, the remarks which follow as to the second and third provisions above quoted and to the rule requiring taxes to be uniform throughout the United States, are equally applicable to this provision, and, if justified, establish that the phrase United States means the states united by and under the constitution. The second and third provisions-the Fourteenth and Fifteenth Amendments-present a question of the very first importance. Will all persons hereafter born in Porto Rico or the Philippines or Hawaii be citizens of the United States under the definition contained in the Fourteenth Amendment and entitled to the protection of that and the Fifteenth Amendment? I wish to point out that the answer to this question is not dependent, in my judgment, upon the establishment of a civil government in these islands. Under whose jurisdiction are the Porto Ricans and the Filipinos and the Hawaiians? Not Spain's, for hers has been yielded to the United States. Not that of a Porto Rican or Filipino or Hawaiian government for there is none de jure or de facto. It cannot be that any one of these groups is derelict and without a government to exercise jurisdiction. There remains but one answer. From the moment the treaty of cession is in effect the islands and the inhabitants thereof are * Corfield v. Coryell, 4 Wash. C. C. 371; McCready v. Virginia, 94 U. S. 391; Geer v. Connecticut, 161 U. S. 519. + Hepburn v. Ellzey, 2 Cranch, 445; New Orleans v. Winter, 1 Wheaton, 91; Barney v. Baltimore, 6 Wallace, 280. Geofroy v. Riggs, 133 U. S. 258. subject to the jurisdiction of the United States, and if the islands are a part of the United States, within the meaning of the Fourteenth and Fifteenth Amendments, then every child born in them after the treaty is effective, is a citizen of the United States with all a citizen's privileges and immunities, and the United States cannot deny to such citizen the right to vote on account of race or color. While those provisions of the constitution which are expressly or impliedly an inhibition upon Congress could not be operative in any event, until Congress chose to act, this provision, which simply defines citizenship, does not wait upon any act of Congress, any more than does the provision of the Thirteenth Amendment. The sole question is, whether, like the Thirteenth Amendment, it is operative in all places subject to the jurisdiction of the United States. But are persons born in these islands born in the United States within the meaning of the constitution? The answer to this question must depend upon the meaning given to the term "United States." If the contention of Professor Langdell is correct—and I believe that it is-then the term must be taken, for constitutional and legal purpose, in its natural, primary meaning of the states united or federated under the constitution. A person born in one of these is a citizen of the United States (the federal sovereign), and of the state where he resides; no state shall make any law to abridge his privileges or immunities as such citizen; neither the state nor the United States shall deny to him the suffrage on account of race, color or previous condition of servitude. But the status of a person born outside the limits of the states so united or federated is not defined by the constitution made and established for such states, but by the law of nations, the common law, and such statutes as may be enacted by Congress, precisely as the status of persons born in the states was thus defined before these amendments went into effect. Here we come again to the distinction between the constitutional and the international definition or use of terms. A state in the constitution means one of the United States; in international law it means any political entity over which the United States, in external affairs, exercises jurisdiction. A citizen in the constitution means a person born or naturalized in one of the United States and subject to their jurisdiction; it means in international law a person born in any place subject to the jurisdiction of the United States and himself subject to such jurisdiction. That this is the natural meaning to be attached to the term as defined in the constitution will be apparent upon a little consideration. When we reflect that these amendments were aimed at states lately in rebellion, that the restrictions contained in them are mainly in terms restrictions upon the states, that there is a specific statement that the person shall be a citizen "of the United States and of the state," that with the example of the Thirteenth Amendment before them Congress and the states would have used a more comprehensive phrase had they intended to include the territories or other places subject to the jurisdiction of the United States that, finally, there is no reason here or elsewhere, save in the Thirteenth Amendment, to impute any intention to extend the constitutional limitations beyond the states framing the constitution, but, on the contrary, there is every reason to suppose that such limitations are imposed for the protection of the states and the people thereof, we are bound, it seems to me, to conclude that, while persons born in the dependencies may be citizens of the United States in the international sense or the sense known to the common law, or may be made citizens for specified purposes by statute or treaty, they are not such by force of any constitutional provision and are subject, therefore, in all internal relations, to such laws as Congress in its wisdom may see fit to enact. I am not unaware that there are dicta-particularly in the Slaughter-House Cases-which make against this conclusion. But it need hardly be said that dicta uttered by a judge twenty-five years ago in deciding whether an act of the State of Louisiana which created a monopoly in the business of running a slaughter-house was constitutional, would have very little weight before the same court when called upon to decide the constitutional status of the inhabitants of the Philippine Archipelago. It has, indeed, been decided that a person, though of Asiatic parentage, born in one of the states, is a citizen of the United States and of the state. But it has never been decided that a person born in a territory is a citizen of the United States within the meaning of these amendments, while it has been decided that an Indian born a member of an Indian tribe is not a * 16 Wallace, 36. + United States v. Wong Kim Ark, 169 U. S. 649. |