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Where it all went wrong

In part 2 we looked at all the Organic (in American Law Organic=Territorial) legislation Congress had passed creating Territorial legislatures and that all the relevant legislation was initiated by the Northwest Ordinance which states that the lands were to be held by the Articles of Confederate system. The American lands council issued a document in 2019 in which they stated that the Northwest ordinance was the ‘lynchpin’ legislation for this entire scheme and they are right. We also revealed that the Territorial conversion into states was predominantly a political issue and we surmised that perhaps politics plays an important part in the whole scheme.

We also saw that there were differences in each states admission acts that create very substantial ‘footing’ differences that are not solved easily, with the end result bringing the ‘equal footing doctrine’ into serious doubt. We looked at the differences between Montana’s admission act and Idaho’s and we saw that there was at one time an intent to extinguish title to Montana’s lands but Idaho’s admission act did not include any such intent. But what the people want to know is this, ‘Where did it all go wrong’ and what do we do about it? We will answer the first question here but the second? That is for the people to deliberate and decide.

The case Law

In the beginning of the 1900’s, there were a series of cases brought before the SCOTUS called the insular decisions. These decisions were based upon the Territorial acquisitions the United States had made at the end of the Spanish-American war. In essence the cases would reveal how the newly acquired Territories would operate and whether the Constitution would apply. The court, in ruling upon these HUGE matters, would be forced to go back through all of the history even before the settling of the western United States (Territories west of the Ohio river) and use that as the guiding force for their decisions.

It is vital for us to understand these cases and, MAINLY, the arguments made both at bar and in the paperwork by the federal attorneys.

These are what is known as the insular decisions:

(insular means isolated or separated)

An expanded view of the case law (cases that are affected by the previous cases or have meritorious dependence on or to some or all of the previously mentioned cases) is here:

  • DeLima v. Bidwell, 182 S. 1 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Goetze v. United States, 182 S. 221 (1901); Argued: December 17–20, 1900; January 14–15, 1901; Decided: May 27, 1901
  • Armstrong v. United States, 182 S. 243 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Downes v. Bidwell, 182 S. 244 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Huus v. New York & Porto Rico S.S. Co., 182 S. 392 (1901); Argued: January 11, 14, 1901; Decided: May 27, 1901
  • Dooley v. United States, 183 S. 151 (1901); Argued: January 8–11, 1901. Decided: December 2, 1901
  • Fourteen Diamond Rings v. United States, 183 S. 176 (1901); Argued: December 17–20, 1900. Decided: December 2, 1901
  • Hawaii v. Mankichi, 190 S. 197 (1903)
  • Kepner v. United States, 195 S. 100 (1904)
  • Dorr v. United States, 195 S. 138 (1904)
  • Gonzales v. Williams, 192 S. 1 (1904)
  • Rasmussen v. United States, 197 S. 516 (1905)
  • Dowdell v. United States, 221 S. 325 (1911)
  • Ocampo v. United States, 234 S. 91 (1914)
  • Balzac v. Porto Rico, 258 S. 298 (1922)
  • Torres v. Puerto Rico, 442 S. 465 (1979)

So if you are reading any supposed authority on the federal lands issue and they leave out this case law you should ask yourself ‘what’s going on here?’. It is THESE cases that dealt DIRECTLY with the subject matter at hand.

We will go through the first of these cases previously posted but we will only focus on Downes v Bidwell because it CONDENSES the entirety of the cases into one singular decision AND it was the case that evolved the Territorial doctrine which becomes an important piece of information out of these decisions.

Let us begin:

Delima v Bidwell: A case arising out of duties being exacted from products shipped from the States to Puerto Rico. The SCOTUS took the matter up on writ of cert because of the severe nature of Constitutional subject matter regarding Territories and States within the application of Article 1 section 9 clause 5. The court decided to solve this matter by going after the merits instead of, what would become, launching into a dissertation on American historical, Territorial practice and its relevance in Constitutional law although, it did take a brief stab at a historical ruling but I would wager it took the court some bit of time to ferret out the matter before the Downes case came up. At issue here was the Foraker act and the court was able to decide most of these along those lines.

Goetze v. United States: Was satisfied by the DeLima decision as the court prepared for the buildup to the Downes decision.

Dooley v. United States: Questioned the Constitutionality of the Foraker act which stated, “This act requires all merchandise “coming into Porto Rico from the United States” to be entered at the several ports of entry upon payment of fifteen percentum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries.” The challenge was under Article 1 section 9 clause 5. It is easy to see the court was fumbling here and must have felt unequal to the task set before it and so again I wager they hit the books and hit them HARD.

We believe we have set the stage appropriately for the Downes decision as we see the court was being bombarded by actions arising out of Territorial acquisitions and the proper standing of these newly acquired Territories in the American Constitutional system, enough so that we need go no further so, let us introduce the case that revealed what the court had learned via its extensive examination of the matter at hand.

Downes v. Bidwell, 182 U.S. 244 (1901)

Again we find ourselves in Peurto Rico with the court being hammered by Constitutional questions arising out of Article 1 section 9 clause 5 and what claimants saw as ‘conflicts’ with the Foraker act. The court had done their analysis and are prepared to present their findings…but not every member of the court is happy with what they had found or heard via arguments at bar and paperwork submitted, in fact one could say there was a substantial ‘disturbance in the force’ about to take place.

Justice Brown delivered the opinion of the court and he begins by making statements that show a difference (departure) from previous attempts to solve this matter by undertaking an elementary Constitutional lesson and after setting the stage he opines, “In the case of the territories, as in every other instance, when a provision of the Constitution is invoked, the question which arises is not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable.”

Justice Brown makes an important statement here, in laymans terms he states that the ‘operative nature’ of the Constitution is in the Constitutional authority of Congress and the court to act upon objects pertaining to Territories by deciding which Constitutional provisions are applicable to them. In a simpler explanation, Congress decides which parts of the Constitution apply and the courts power extends only to those provisions which, becomes evidence that the Constitution is operative in the Territory.

Justice Brown then tackles the object: “As Congress derives its authority to levy local taxes for local purposes within the territories not from the general grant of power to tax as expressed in the Constitution, it follows that its right to locally tax is not to be measured by the provision empowering Congress “To lay and collect Taxes, Duties, Imposts, and Excises,” and is not restrained by the requirement of uniformity throughout the United States. But the power just referred to, as well as the qualification of uniformity, restrains Congress from imposing an impost duty on goods coming into the United States from a territory which has been incorporated into and forms a part of the United States”. The judge is trying to find his footing here as he seems ill at ease with the subject matter but is making every effort to comply with what he sees as a settled matter by Congressional action.

Justice Gray comes to the rescue: “The civil government of the United States cannot extend immediately and of its own force over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief. Civil government cannot take effect at once as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty. It can only be put in operation by the action of the appropriate political department of the government at such time and in such degree as that department may determine.” (we can see a Territory/military connection here).

As we can see Justice gray (who died in 1902) seems to have no trouble finding his way around the new information and even seems at home with explaining it adequately. We will see soon that Justice Gray (and the other judges)had the advantage of looking to US history (judicial and legislative)to ascertain the particulars contained in that paragraph.

He continues: “So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory in the sense of the revenue laws. But those laws concerning “foreign countries” remain applicable to the conquered territory until changed by Congress.” The era of the incorporation doctrine seems to begin in this decision and extends out from here to become applicable to private rights via the ‘selective incorporation doctrine’ which in essence gives the federal courts the power to force state courts to comply with Amendments 1-8, but can also be viewed as the Federal court system giving itself 8 new powers. I suppose its a matter of perception but I digress, this is NOT about private rights.

And further: “If Congress is not ready to construct a complete government for the conquered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution.” In essence the Foraker act under this new Territorial doctrine is within the Constitutional power of Congress and the court will support it.

And so the court aligns itself with the DeLima decision, asserts a Territorial authority of Congress, and then Justice Brown, apparently ready to tackle the issue in full, takes over and asserts:

The federal government was created in 1777 by the union of thirteen colonies of Great Britain in “certain articles of confederation and perpetual union,” the first one of which declared that “the stile of this confederacy shall be the United States of America.” Each member of the confederacy was denominated a state. Provision was made for the representation of each state by not less than two nor more than seven delegates; but no mention was made of territories or other lands, except in Art. XI, which authorized the admission of Canada, upon its “acceding to this confederation,” and of other colonies if such admission were agreed to by nine states. At this time, several states made claims to large tracts of land in the unsettled west, which they were at first indisposed to relinquish. Disputes over these lands became so acrid as nearly to defeat the confederacy before it was fairly put in operation. Several of the states refused to ratify the articles because the convention had taken no steps to settle the titles to these lands upon principles of equity and sound policy; but all of them, through fear of being accused of disloyalty, finally yielded their claims, though Maryland held out until 1781. Most of these states in the

Page 182 U. S. 250

meantime having ceded their interests in these lands, the confederate Congress, in 1787, created the first territorial government northwest of the Ohio River, provided for local self-government, a bill of rights, a representation in Congress by a delegate, who should have a seat “with a right of debating, but not of voting,” and for the ultimate formation of states therefrom, and their admission into the Union on an equal footing with the original states.

The confederacy, owing to well known historical reasons, having proven a failure, a new Constitution was formed in 1787 by “the people of the United States” “for the United States of America,” as its preamble declares…lets stop here.

The federal government was created in 1777 under the Articles of Confederation?? We understand that the federal government was created in 1789 upon ratification of the Constitution?? Unless…the Articles were never entirely done away with?? The judge lays it out. “The confederacy, owing to well known historical reasons, having proven a failure, a new Constitution was formed in 1787 by “the people of the United States” “for the United States of America,” as its preamble declares.” Do you see it? It is the construction of all the wording, very precise and with brevity. In other words, ‘The United States created a new document on behalf of (for) the United States of America’…the stile of the confederacy.

The Territories are NOT a part of the United States Constitutional system: “It is sufficient to observe in relation to these three fundamental instruments that it can nowhere be inferred that the

Page 182 U. S. 251

territories were (within the contiguous US)considered a part of the United States. 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, and even the provision relied upon here that all duties, imposts, and excises shall be uniform “throughout the United States” is explained by subsequent provisions of the Constitution that “no tax or duty shall be laid on articles exported from any state,” and

“no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another.”

So…what is being said here? Quite simple really; if it can be labeled a Territory it is not a part of the Constitutional system, the trick is in the labeling no?

As is stated a little later, In short, the Constitution deals with states, their people, and their representatives.” And so all one need do is ascertain whether the land in question is State land. If it is State land it is a part of the Constitutional system of States it is really THAT simple.

We shall end this segment of part 3 with an attempt by the court at some sort of Constitutional equilibrium: The decisions of this Court upon this subject have not been altogether harmonious. Some of them are based upon the theory that the Constitution does not apply to the territories without legislation. Other cases, arising from territories where such legislation has been had, contain language which would justify the inference that such legislation was unnecessary, and that the Constitution took effect immediately upon the cession of the territory to the United States. It may be remarked, upon the threshold of an analysis of these cases, that too much weight must not be given to general expressions found in several opinions that the power of Congress over territories is complete and supreme, because these words may be interpreted as meaning only supreme under the Constitution; nor, upon the other hand, to general statements that the Constitution covers the territories as well as the states, since in such cases it will be found that acts of Congress had already extended the Constitution to such territories, and that thereby it subordinated, not only its own acts, but those of the territorial legislatures, to what had become the supreme law of the land.”

In other words, Congress has already decided which parts of the Constitution applies to Territories and which does not and so the court, even though there has been much vigorous dissent on this subject, created a doctrine out of it; so chill out everything is just fine…or is it? In our next segment we will view the doctrine created by the court with subsequent discussion at some point arriving at the dissenting opinion in the case.

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