Without the Constitution

A YEAR ago Harpers Weekly regarded with the greatest disfavor the suggestion that the United States would govern the island possessions without the Constitution. This, because such a suggestion was fraught with peril to all true constitutional government in this nation.

Within the year 1899, however, Harpers Weekly was completely revolutionized. Accordingly, in next to the last number for that year the Weekly takes positive ground in favor of the United States governing all her island possessions without the Constitution. It is interesting to notice this position which is new ground for the nation in her governing.

Citing an admittedly questionable application of a Supreme Court decision, the Weekly says: “We have never been able to see why this decision does not necessarily sustain the contention that Congress, with the President’s consent, or over his veto, may establish in the government it pleases over a Territory, without regard to the limitation of the Constitution.”

This conclusion the Weekly then supports by a citation from another decision of the Supreme Court—the decision by which the property of the Mormon Church corporation was confiscated by the United States Government—which at the time it was rendered we showed in these columns was positively a monarchical decision: a decision which in principle made the United States Government a monarchy. See AMERICAN SENTINEL, Vol. 6, p. 147 (A.D. 1891).

From that monarchical, absolutist decision, Harpers Weekly quotes thus:—

“Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by express and correct application of its provisions.”

And upon this quotation the Weekly proceeds thus:—

“In other words, the limitations as to personal rights are not binding in law, but are binding in morals. Therefore, whenever Congress deems that morality, including the essentials of good government, requires that these limitations shall not be observed, it is not only its right, but its duty to disregard them….

“Congress, we think, under Justice Bradley’s decision, would not feel itself obliged to consider at all the limitations [of the Constitution] in framing a law for the government of the Philippines. It would probably deny to the Tagal, for example, the right of assembling, the right to bear arms, the security against search and seizure, guaranteed by our own people…. Congress, in a word, would have a perfectly free hand in establishing a government for any of our new possessions, as free as the British Parliament possesses in legislating for the empire.”

And the Weekly says that this view of the question is already the one adopted by the present national Administration, inasmuch as “Secretary Root holds the view that the Constitution does not apply to the distant Territories;” and “he is now charged with the government of all the colonies except Hawaii and Alaska:” and that Senator Frye in a published interview “is reported also to have said that the Constitution does not apply.”

So much for the new position in regard to the abandonment of the Constitution by the Government, and the governing without the Constitution.

However, it is interesting to notice the curious reasoning, both of the Supreme Court and of Harpers Weekly, by which this abandonment of the Constitution is accomplished and justified.

The Supreme Court says the Congress, so far as it is subject to the Constitution at all in legislating for the Territories, is subject only by inference from the general spirit of it, rather than because of any “direct application of its provisions,” and yet in the same breath says that it is the Constitution “from which Congress derives all its powers.” And that is simply to say that the instrument “from which Congress derives all its powers” may be disregarded by Congress in the exercise of certain of its powers! In other words, that the Constitution in bestowing upon Congress “all” the powers that Congress can have, has bestowed upon Congress the power to disregard the very instrument from which it derives all its powers!! A sheer absurdity.

The Weekly, in explaining this passage from the Supreme Court decision, and in deriving comfort from it, says that the limitations of the Constitution are “not binding” upon Congress “in law,” “but are binding in morals.” And then from this draws the remarkable conclusion that “Therefore, whenever Congress deems that morality requires that these limitations shall not be observed, it is not only its right, but its duty, to disregard them.” Which is simply to say that “morality” can require the disregard of that which is “binding in morals”! that “it would be duty to disregard” duty!! Another sheer absurdity.

By such reasoning as is displayed in these few examples, it is not in anywise surprising that men will perfectly satisfy themselves that the government in “the Colonies” can be conducted without the Constitution. And by the same sort of reasoning they can very easily satisfy themselves on occasion that government at home here in these United States can also be conducted without the Constitution.

In reviewing in these columns May 7, 1891, the Supreme Court decision quoted now by Harpers Weekly, we said that it “at once creates [in these United States], a sovereign power [apart from the people] and clothing it with paternal authority. And if this doctrine should be maintained, so that it becomes a principal of American law, and shall become established as a principle of government here, then the revolution backwards is complete; government of the people is gone; and that of a sovereign parent of the people as put in its place. THEN the doctrine of the Declaration of Independence and of the Constitution is subverted and the doctrine of sovereignty, absolutism, and paternalism is established in its stead.” And this is now being fulfilled to the very letter, in very deed in the Government of the United States.

At the time of the delivery of that decision by the Supreme Court, the Chief Justice, with Justices Field and Lamar concurring, in a dissenting opinion, uttering a warning to the same effect in the following words:—

“In my opinion Congress is restrained, not merely by the limitations expressed in the Constitution, but also by the absence of any grant of power expressed or implied in that instrument. And no such power as that involved in the act of Congress under consideration is conferred by the Constitution, nor is any clause pointed out as its legitimate source. I regard it of vital consequence, that absolute power should never be conceded as belonging under our system of government to any one of its departments. The legislative power of Congress is delegated and not inherent, and is therefore limited…. Nor is there hear any counterpart in Congressional power to the exercise of the ROYAL PREROGATIVE. [And such exercise is] in disregard of the fundamental principle that the legislative power of the United States is exercised by the agents of the people of the Republic is delegated and NOT inherent.”

These items suggest that which is susceptible of abundant proof, that this repudiation of the principles of the Declaration and the Constitution by this nation, is a thing of gradual growth and not of a sudden leap. It finds its life in the planting of principles years ago which by clear thinkers were observed and pointed out at the time. And not that the thing is done in open acts, it is also by these thinkers seen to be but the logical and inevitable result of the acceptance of the pernicious principles that were insinuated years ago.

A.T. J.

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