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A Constitutional History of the United States
Chapter L - The Later Years of the Nineteenth Century;
by McLaughlin, Andrew C.
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DEVELOPMENT OF NATIONAL AUTHORITY;
THE PROBLEM OF
IMPERIALISM
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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