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A Constitutional History of the United States
Chapter L - The Later Years of the Nineteenth Century;
by McLaughlin, Andrew C.


In the last quarter of the nineteenth century the Republican party was firmly established as a conservative party. The old relics of the Civil War and of Reconstruction clung to the garments in which the faithful could still stand; and men still voted for the party candidates because they or their fathers had voted for Lincoln or had aided in the maintenance of the union, but the interests at stake were economic; the party stood for a protective tariff and cherished the well-being of industry and industrial stability. While industrial and social conditions were rapidly developing, economic interests were especially guarded by a thoroughly-organized and competent political party; and the success of that party did not rest alone upon the interest and activity of men distinctly involved in control of industry or in the safeguarding of vested rights of property, but also upon the allegiance of millions of the common people of the land. It is not necessary to discuss here the controversies between the Republicans and the Democrats on the question of protective duties, though the question sometimes involved what passed for constitutional arguments. There were other matters which proved for constitutional history more significant; there were signs in the sky or rumblings in the earth indicating a movement for social and economic change of a far-reaching character.

In 1884 Benjamin Butler came forth into the broad light of day as a candidate for the presidency — the nominee of two parties, the Anti-Monopoly party and the National or Greenback party. The latter party, representing the demand for paper money, asked also for other measures which, to use a word of later days, were "progressive." The platform of the Anti-Monopoly party, chiefly perhaps because of its brevity, is the more striking of the two; and yet the party and its program — not to speak of its candidate — received scarcely more than a contemptuous glance from its powerful opponents. Both platforms registered in large degree not only the subjects which were to be the source of dispute in the coming decades, but more: they laid down principles and demands which in very large measure actually marked the course of social and constitutional progress in the next forty years In this rapidly changing world, the demands of the radical of one era may be the possession of the conservative in the next.

The Anti-Monopoly party did not advocate paper money, and its platform is briefer than that of the Greenbackers, but, if we view the two platforms as one, we find the following conspicuous proposals — the rigid inspection of mines and factories, a reduction of the hours of labor in factories, the abolition of child labor, the abandonment of importation of "contracted labor", submission of amendments to the Constitution in favor of suffrage regardless of sex, and on the subject of the liquor traffic, the regulation of interstate commerce, the establishment of bureaus of labor statistics in states and nation, the election of United States senators by popular vote, a graduated income tax. "Give our farmers and manufacturers", said the Greenbackers, "money as cheap as you now give it to our bankers, and they can pay high wages to labor, and compete with all the world."

In the last decade of the century various proposals were made which were indicative of discontent, a feeling that governments, both state and national, were not responsive to public demand, that parties and politicians barred the way, and that popular government was misnamed, if the word were applied to existing conditions. The cure for the evils or misadventures of democracy — it was now emphatically declared — was more democracy (a significant paradox); government must be brought safely within the control of the people. The movement was not unlike that of eighty years before, when old "king caucus" was dethroned and the nominating convention put in its place. The first step of importance, and one of unquestionable value, was the introduction of the Australian ballot, in the place of the party ballot prepared and printed by the party machine or even by the party candidates. Early in the next century came the direct primary as a substitute for the caucus and the convention system of nomination. In some states the referendum and initiative were established, and, symptomatic of the same hope and of a like public mind, was the adoption in some states of elaborate constitutions in which the people were, or thought they were, legislating directly and freely expressing their own will. This procedure expressed a distrust of representative government itself. No one can assert that these efforts to reinstate or invigorate political democracy have been a conspicuous success and have shaken off the hold of the professional politician. And we need not suppose that the great changes, marked by constitutional amendments and social legislation, were the result of party contests, in which issues were sharply presented, fundamental questions were debated, and results were registered at the ballot-box. If some weight must be given to the demands of the minor parties and to the Democratic party after its amalgamation with the Populists — for a party out of power is likely to enlist the discontented — , the fact still remains that changes came because of the slow development of public opinion and of a readiness of the people-at-large, free from distinct party pressure, to visualize the needs of the time. The amendments to the federal Constitution, of which something will be said in later pages, were not in any marked degree the product of debate between contending parties. In 1894 Congress passed an income tax law. It provided for an annual tax of two per cent upon the gains, profits, and income of over four thousand dollars from any kind of property, rents, interest, dividends, salaries or from any profession, trade or employment. The subject naturally attracted much popular interest, and acute attention was given to the arguments concerning the constitutionality of the act, when, the next year, a case was brought to the federal Supreme Court to test its validity.[1] The Constitution gives power to lay and collect taxes, duties, imposts and excises; "but all duties, imposts, and excises" must "be uniform throughout the United States"; and it also provides that "direct taxes shall be apportioned among the several States ... according to their respective numbers". Objection was raised by counsel to the exemption of incomes under four thousand dollars; and in light of the experience of later years, the objection has especial interest; but it did not give the Court particular trouble or anxiety. In this connection also the counsel pointed out that the payments of the tax would be made chiefly and in undue degree by the citizens of the rich eastern states. The primary question, however, was whether the tax provided for by the act was a direct tax; if it was, then the act was invalid because apportionment among the states was not provided.

That the law would be upheld by the Court appeared to be a reasonable expectation, because of the weight of previous decisions. In the case of Hylton v. United States (1796) [2] the opinion was expressed, without explicit decision, that only a capitation tax and a tax on land were direct taxes. An act of Congress passed in 1864 [3] providing for a succession tax had been upheld, and even more important was a later decision which pronounced an income tax valid and definitely accepted the definition of the Hylton case,[4] In no one of these cases was the tax apportioned among the states. The act of 1894 came before the Court twice. In the first decision the Court declared a tax on income from municipal bonds was invalid, and that a tax on income from real estate was a direct tax and that the law in this latter particular was, therefore, unconstitutional, inasmuch as it did not apportion the taxes among the states. Upon other questions the justices were evenly divided and, in consequence, on these points no opinion was expressed. Upon a rehearing six weeks later, the Court declared that not only taxes on incomes from real estate, but also taxes on incomes from personal property were direct taxes. The whole act was declared void, because, though certain portions might be valid, the act constituted "one entire scheme of taxation". Four justices dissented.

The arguments before the Court and the opinions of the justices held the public attention; and the decision was widely criticized. The principle involved was so important that earnest advocates of the income tax and those filled with zeal for industrial and social reform were unwilling to retire from the struggle. Probably no other case, with the exception of the Dred Scott case of forty years before, was so widely discussed or received so much unfavorable comment. The Democratic party declared in 1896 that the Court had sustained constitutional objections, which had previously been overruled by the ablest judges who ever sat on that bench; and the party platform announced the duty of Congress to "use all the constitutional power which remains after that decision, or which may come from its reversal by the court as it may hereafter be constituted, so that the burdens of taxation may be equally and impartially laid...." The end was not in immediate sight, but the desire to curb the expansion of great fortunes and the zeal for what was deemed justice in taxation continued unabated.

Two cases decided by the Supreme Court in the later years of the century deserve special attention because they exposed the development or at least the actual extent of national authority. Only one of them had immediate connection with the social unrest of which we have just spoken; both brought to popular attention the scope of judicial power. The first of these cases was decided in 1890. A United States marshal protecting Justice Field, while on circuit court duty in California, shot a man threatening the life of the Justice. The marshal was arrested by the sheriff of the county and was discharged upon habeas corpus by the federal circuit court. The case was carried to the Supreme Court, where it was held that the marshal acted within his authority and was not answerable in the courts of the state.[5] Only two justices dissented, but the dissent was vigorous; they quoted an opinion of the Court given only six years before: "It is elementary learning that, if a prisoner is in the custody of a State court of competent jurisdiction, not illegally asserted, he cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of the United States, simply because he is not guilty of the offence...." [6] We need not attempt to impugn the position of the majority of the Court; but the following statement by the minority indicates the historical significance of the whole incident: "We are not unmindful of the fact that in the foregoing remarks we have not discussed the bearings of this decision upon the autonomy of the States, in divesting them of what was once regarded as their exclusive jurisdiction over crimes committed within their own territory, against their own laws, and in enabling a federal judge or court, by an order in a habeas corpus proceeding, to deprive a State of its power to maintain its own public order. ." [7]

The second case of which we have just spoken was the Debs case which arose out of the great railroad strike of 1894. Under the direction of the Attorney-General of the United States, a bill was filed in the federal circuit court for the northern district of Illinois, complaining of certain persons, officers of the American Railway Union, and declaring that they were interfering with the course of interstate commerce. In response to the prayer of the bill of complaint, the court issued an injunction, commanding the defendants "and all other persons whomsoever" to desist and refrain from interfering with interstate commerce and the carrying of the mails. Charged with violating the injunction, the defendants were found guilty of contempt and sentenced to imprisonment. On their application for a writ of habeas corpus, the Supreme Court, denying the petition, rendered an important decision.[8] "The entire strength of the nation", said the Court, "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws." [9] Of even greater significance was the statement that the right to use force does not exclude the right of appeal to the courts for the exercise of all their powers of prevention, and that peaceful determination by the judiciary is, or might be, better than the use of clubs and bayonets. Here, then, was announcement of what was stigmatized as "government by injunction", a subject of acute controversy for years. Associated with the Income Tax case, which had been decided only about a week before, the case was said to be evidence that the courts of the nation were arrayed on the side of property.

The use of the injunction, disobedience to which could be punished as a contempt of court, aroused the opposition of labor leaders. They looked upon the whole procedure as a vulgar and dangerous subterfuge. Others also, though not associated with labor movements and cherishing no sympathy with strikes, were dissatisfied or filled with misgivings; if, they said, property was endangered, it was the duty of the executive of state or nation to protect it, and if it were destroyed, those charged with a penal offense should be tried by a jury and not thrust into prison by a judge.[10] Conservatives of this type were inclined to doubt that respect for law was increased by the use of a summary process rather than by the strong arm of the executive; and some there were who feared lest the dignity and the prestige of the courts be lessened and lest social and class hostilities be augmented rather than reduced.

But of no less interest was the fact that federal troops were sent to Chicago to protect the railroads, the free course of interstate commerce, and the mails. The Governor of Illinois had not asked for troops; he declared that the state forces were able to quell disorder and guard property, and that the national government had therefore no right to encroach upon the states or impugn their authority; to do this was to ignore the elementary principles of local self-government.[11] We need not enter upon a discussion concerning the validity of this argument. Though the issue was not directly presented to the Court, it appears to be by inference thrust aside by the words previously quoted. Of course the critical question was whether this should be considered an instance of "domestic violence" or an uprising against national authority which the government was under obligation to suppress. No one can seriously contend that the government in the face of a serious insurrection must wait placidly till a governor calls for aid, if the free course of interstate commerce and the mails be obstructed, and the governor be negligent, unwilling, or incompetent. But plainly national authority was marching on; and if the federal authorities were technically justified in law, the fact remained that the government had disclosed its power.

In viewing the manifestation of federal authority in these years, it is desirable to notice the use of an injunction issued by a federal court to prevent a state official or more commonly a board or commission from enforcing a law alleged to be unconstitutional. In these cases the principle which has been mentioned in previous pages — the principle that an officer cannot take refuge behind the authority of the state, if the state has no constitutional power in the matter — is made specially prominent. But also important is the actual exercise of the power to enjoin him, a power extensively used in the succeeding decades. In the Reagan case (1894), already referred to, the Supreme Court sustained an injunction issued by a circuit court restraining a state railroad commission from enforcing rates which the commission had prescribed. Other cases of a similar character followed.[12] And thus it appears that it is not necessary in controversies of this kind to follow the slow processes of the law and to carry the case through the state courts and onward by appeal to the federal Supreme Court to test the validity of the state act or the decision of a state commission.

The leading matter of interest in the closing years of the century was the problem of annexation, the result of the Spanish-American war. There was much vigorous and wholesome public discussion concerning the desirability of annexation, the nature of the union, the ethics of imperial expansion, and the elementary principles which should be respected in the upbuilding of the nation. There was a good deal of wasteful boasting about America's becoming a world power, as if America had not for a hundred years and more been of vast influence in the world for many reasons, among them the very fact of her attempt to give constitutional protection to liberty and democracy. But it remains that at this time the United States was being caught up more and more in the skein of diplomatic controversy and consequent perplexities. The fact that now, more plainly than hitherto, the nation was both a Pacific and an Atlantic power and had corresponding obligations was made plain to the man on the street — who like most men did not take the time to consider all the possible results.

In previous years, if Alaska be left out of consideration, only territory contiguous to the United States had been annexed; and the natural expectation was that the land, thus acquired, would be peopled by American citizens and would ultimately compose a portion of the union. Many persons still held the doctrine, nowhere better stated than by Taney in the Dred Scott case: annexed territory "is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority". It is an amusing and entertaining fact — this reference to the old slave case to defend the rights of freemen; the Supreme Court, as we shall see later, declared with Taney that absolute and unlimited authority over the territory annexed was not within the scope of governmental powers. In any narrow sense, the annexation of the Philippines and Porto Rico, as a mere fact, does not lie within the field of constitutional history, but in its effects and reverberations it raised the question whether America should in any degree become imperialistic in aim and character. The Democratic platform of 1900 declared this burning question to be the paramount issue of the campaign.

The status of the annexed territory and the bearings of the Constitution upon the extent and character of the rights of the people, who were brought under the American flag, proved a perplexing problem. In the terms of the day, did "the Constitution follow the flag"? Did it carry with it the full blessings of liberty and impose upon the United States all the restrictions which the government must respect when dealing with its own citizens, who were likewise citizens of the states? In the earlier cases, the applicability of tariff duties arose to be solved; but not all the difficulties of that problem need disturb our dreams. In the course of the decisions, certain principles of great importance in a developing empire were gradually determined. In the case of Downes v. Bidwell,[13] the Court, in a five to four decision, announced that the Constitution did not in itself and unaided immediately embrace in its entirety the people of an annexed area, nor did it bestow upon the people all the privileges of United States citizenship.[14] In the opinion rendered by Justice Brown, which in most respects may be considered the opinion of the Court, the only distinction made is that between territories and states; but in a concurring opinion by three justices, with which a fourth largely agreed, we find the declaration that there are three different stages — unincorporated territory, incorporated territory, and states.

This latter classification came in the course of a brief time to be the accepted theory of the Court. Thus, in any given instance, the crucial question is whether Congress, either at the time of annexation or later, expressly or by implication "incorporated" a people. We find in one case (1903) [15] a decision to the effect that certain provisions in the fifth and sixth amendments to the federal Constitution were not made applicable to Hawaii under the joint resolution annexing the Islands: "neither the terms of the resolution nor the situation which arose from it served to incorporate the Hawaiian Islands into the United States and make them an integral part thereof." [16] The next year (1904) the Court, passing upon the question whether right of jury trial was carried by the Constitution to the Philippine Islands, said: "Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision [Downes v. Bidwell] that the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation".[17] Next came a case involving the status of Alaska;[18] with only faint protest from Justice Brown and a statement from Justice Harlan, who concurred in the decision but rejected the doctrine of incorporation and non-incorporation,[19] the Court plainly accepted the theory or the fact of unincorporated and incorporated territories and decided that Alaska belonged in the latter class. But we should especially notice that incorporation and the "organization" of a territory by congressional enactment are distinct processes.

It appeared, therefore, that if the United States desired to become an imperial power — imperial in fact and law if not imperialistic in spirit — , the stage was all set for the process. Dependencies could be kept permanently beyond the pale of the union. But, withal, there were limitations on congressional power: "There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests." [20] These words of Justice Brown were thrown out to calm the "Grave apprehensions of danger" felt by "many eminent men"; but it is specially interesting to notice his reference to "natural justice", his reliance on "Anglo-Saxon character", and his use of the word "dependencies", a term hitherto almost or quite foreign to the American vocabulary. In the opinion there were, however, certain more explicit statements: though declaring that there was no intention to express an opinion how far the bill of rights contained in the first eight amendments was of general and how far of local application, the Court said, "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." [21]

[1] Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601 (1895).

[2] 3 Dallas 171.

[3] Scholey v. Rew, 23 Wallace 331 (1875).

[4] Springer v. United States, 102 U. S. 586 (1881). See also Pacific Ins. Co. v. Soule, 7 Wallace 433 (1869), where the Court laid special emphasis on the opinions in the Hylton case; Veazie Bank v. Fenno, 8 Wallace 533 (1869). Uniformity of taxation means uniformity in every place where the subject of it is to be found. Head Money Cases, 112 U. S. 580 (1884). There was no chance of overthrowing the act because of the fact that some sections would pay more than others or because of exemptions.

[5] In re Neagle, 135 U. S. 1 (1890).

[6] Ex parte Crouch, 112 U. S. 178, 180 (1884). Five years after the Neagle case, the Court said, "... a prisoner in custody under the authority of a State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the State to test the validity of his arrest and detention." Whitten v. Tomlinson, 160 U. S. 231, 247 (1895). Three years after this, the Court, declaring that the discharge of the prisoner was invalid under the circumstances, spoke of the exceedingly delicate jurisdiction given to the federal courts, by which a person under an indictment in a state court might be taken out of the custody of the state upon a writ of habeas corpus. Baker v. Grice, 169 U. S. 284 (1898). The judicial code (section 33) now provides (1916) for removal for trial to the federal district court of a civil suit or a criminal prosecution commenced against any federal officer on account of any action done by him under color of his office or in performance of his duties. This, it will be noticed, is quite different from the method of releasing him from state custody under habeas corpus; and it assures a formal trial on the merits of the case. The portion of the judicial code just cited is of importance in the attempted enforcement of the prohibition amendment at a later day.

[7] In re Neagle, 135 U. S. 1, 99 (1890). I have not attempted in the brief discussion in the text to examine the argument on either side as to whether at that time there was statutory authority for the issue of habeas corpus under the circumstances, or whether the marshal was engaged in executing any "law".

[8] In re Debs et al., 158 U. S. 564 (1895).

[9] It all sounds like Hamilton's statement in The Federalist, no. XVI: the federal government "must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the governments of the particular states." He also said, "The majesty of the national authority must be manifested through the medium of the court of justice."

[10] The counsel for the petitioners declared "The suppression of public disorder and tumult is an executive and not a judicial function. . . . But it is equally plain that the only object of a suit by the government for injunction to prohibit what the criminal code has already forbidden is to change the procedure by which the guilt of those charged is to be ascertained and their punishment inflicted." It is not the intention of the present writer to declare the decision rendered by a unanimous Court was incorrect. It was based partly on the fact that the United States has "property in the mails", but the mere fact that an act is. criminal does not divest the jurisdiction of equity to prevent it by injunction. If the principle was indubitably sound, it was nevertheless a dramatic exhibition of national authority and judicial power.

[11] "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the Legislature, or of the executive (when the Legislature cannot be convened), against domestic violence." Constitution, Art. IV, sec. 4.

[12] Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466 (1898). An injunction had been previously used in some cases. In 1911 Congress provided that, as a rule, the injunction should issue from a court of three justices. Judicial Code, sec. 266.

[13] 182 U. S. 244 (1901). The Island of Porto Rico became territory appurtenant to the United States, but not a part of the United States within the revenue clause of the Constitution.

[14] "We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the 'American empire'.... Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States." Ibid., 279.

[15] Hawaii v. Mankichi, 190 U. S. 197 (1903).

[16] These words are in the concurring opinion of two justices. Ibid., 219. Justice Brown, giving the opinion of the Court, did not make any distinction between incorporated and unincorporated territories. Five justices were in the affirmative; two gave a concurring opinion. Four justices dissented.

[17] Dorr v. United States, 195 U. S. 138, 143 (1904).

[18] Rassmussen v. United States, 197 U. S. 516 (1905).

[19] "I am constrained to say", Harlan had previously declared, "that this idea of 'incorporation' has some occult meaning which my mind does not apprehend." Downes v. Bidwell, 182 U. S. 244, 391. Justice Brown, adhering to his opinion in the earlier case, said the Constitution does not apply to territories acquired by treaty until Congress so declares. The justices all agreed that the sixth amendment was applicable to Alaska.

[20] Downes v. Bidwell, 182 U. S. 244, 280 (1901).

[21] Ibid., 277. The three justices concurring in the decision and giving a separate opinion read by White, said, "... even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution." Ibid., 291. See also the statement in Hawaii v. Mankichi, 190 U. S. 197, 217-218 (1903).


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