Robert,
Me: “However
I'm not amused by "Guam Historian" Anne Perez
Hattori's analysis linking our
inability to vote in presidential elections to the Insular Cases.”
You: “Hattori was talking about the origins of the
unincorporated territorial status[1]
and it was Olver [sic] who made the link to voting for President.”
______________________________________________________________________
This glaringly FALSE STATEMENT was uttered by Guam historian Anne
Perez Hattori
on the TV show called Last Week Tonight
with John Oliver :
“The
United States
flag is flying over these lands so some people said well doesn’t that mean that
American laws apply
[2]? In 1901
the insular cases, basically the judgment of the Supreme Court, the new
territories were inhabited by alien quote alien races and they may not be able
to understand Anglo-Saxon laws therefore the constitution doesn’t have to
apply.”
Guam historian
Anne Perez Hattori
condensed 147 pages of United States Supreme Court opinion into 38 words
and presented that 38 word quote as the
ratio
decidendi and not the
hypothetical obiter dictum that it really was. The three concurring opinions
from which the Court’s ruling was derived employed different rationales which
yielded the holding in
Downes, none of which relied on
Guam historian
Anne Perez Hattori’s
38 words to reach a result. Guam historian Anne Perez
Hattori’s statement smacks
of a degree of sophistry that is perhaps fitting for a TV comic but not coming
from a university professor who we should be able to take seriously
[3].
Nine United States Supreme Court cases
were decided in 1901 which are generally identified as Insular Cases.
[4]
Probably the best way to gain an understanding of the Insular Cases and their
import is to read the cases. Two key cases are of great import, each of which
list one
George
R. Bidwell
as the appellee. Bidwell the
US
customs collector for
New York
was sued in his official capacity to recover duty paid under protest on sugar
“imported” from Port Rico
[5].
The Supreme Court held that
Puerto Rico was
not a foreign country and therefore the collection of the tariff from
De Lima was wrong. (
De Lima v.
Bidwell)
In the other key case S. B. Downes and Co. was an importer
who sued the collector of customs for New York
to recover $659.35 paid in duty for the import of some bananas to George R.
Bidwell the customs collector for New
York. Downes turned on an the determination of
whether the Foraker Act passed constitutional muster. The Downes decision held only that the
Uniformity Clause, Art I § 8 ¶ 1 of the Constitution:
The Congress shall have Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States; but
all Duties, Imposts and Excises shall be uniform throughout the United States;
was not applicable outside the 47 states
[6]
that made up the union at that time.
Here’s the holding in that case:
“We are therefore of opinion that the Island of Porto Rico is a
territory appurtenant and belonging to the United States, but not a part of the
United States within the revenue clauses of the Constitution; that the Foraker
Act[7]
is constitutional, so far as it imposes duties upon imports from such island,
and that the plaintiff cannot recover back the duties exacted in this case.
The judgment of the Circuit Court is therefore
Affirmed.
And the syllabus of the decision penned by Justice Brown:
Syllabus
By MR. JUSTICE BROWN,
in announcing the conclusion and judgment of the Court.
The circuit courts have jurisdiction, regardless of amount, of
actions against a collector of customs for duties exacted and paid under
protest upon merchandise alleged not to have been imported.
The Island of Porto Rico is not a part of the United States within that provision of the
Constitution which declares that "all duties, imposts, and excises shall
be uniform throughout the United
States."
There is a clear distinction between such prohibitions of the
Constitution 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.
A
long continued and uniform interpretation, put by the executive and legislative
departments of the government upon a clause in the Constitution should be
followed by the judicial department unless such interpretation be manifestly
contrary to its letter or spirit.
Downes consists of 147 pages of analysis that spans
the discipline of constitutional interpretation from the parsing of text, stare decisis and policy analysis, to
historical and philosophical determinations. Downes deals with tariff duties on
oranges. Commercial interests, especially the sugar industry, were the animas underlying Downes, not
as Guam historian Anne Perez Hattori would instruct, that Porto Rico was “…inhabited
by alien quote alien races and they may not be able to understand Anglo-Saxon
laws therefore the constitution doesn’t have to apply.”
Nine of the Insular Cases were decided in 1901. Eight dealt
with Puerto Rico, one the
Philippines
(24 Diamond Rings.) None dealt with Guam nor did they have any applicability to
Guam whatsoever.
[8] At
the time those insular cases were decided
Guam
wasn’t even a colony.
[9] Guam was a prize of war governed by the President as
commander in chief until such time that the Congress determined the civil
rights and political status of the native inhabitants.
[10]
Four justices dissented and in so
doing clearly defined the issue before the Court:
MR. CHIEF JUSTICE FULLER, with whom
concurred MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE PECKHAM, dissenting:
This is an action brought to recover moneys exacted by the
collector of customs at the port of New York as import duties on two shipments of fruit
from ports in the Island of Porto Rico to the port of New York
in November, 1900.
The treaty ceding Porto Rico to the United States was ratified by the
Senate February 6,
1899; Congress passed an act to carry out its obligations March 3, 1899, and
the ratifications were exchanged, and the treaty proclaimed April 11, 1899. Then followed
the act approved April
12, 1900. 31 Stat. 77, c. 191.
MR. JUSTICE HARLAN, MR. JUSTICE BREWER, MR. JUSTICE PECKHAM,
and myself are unable to concur in the opinions and judgment of the Court in this
case. The majority widely
differ in the reasoning by which the conclusion is reached, although
there seems to be concurrence in the view that Porto Rico belongs to the United
States, but nevertheless, and notwithstanding the act of Congress, is not a part
of the United States subject to the provisions of the Constitution in respect
of the levy of taxes,
duties, imposts, and excises.
The inquiry is whether the Act of April 12, 1900, so far as it requires
the payment of import duties on merchandise brought from a port of Porto Rico
as a condition of entry into other ports of the United States, is consistent with
the federal Constitution.
The act creates a civil government for Porto Rico, with a
governor, secretary, attorney general, and other officers, appointed by the
President, by and with the advice and consent of the Senate,…
***
The first clause of sec. 8 of Article I of the Constitution
provides:
"The Congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts, and provide for the common
defense and general welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout the United States."
Clauses four, five, and six of section nine are:
"No capitation, or other direct, tax shall be laid, unless in
proportion to the census or enumeration hereinbefore directed to be
taken."
"No tax or duty shall be laid on articles exported from any
state."
This act on its face does not comply with the rule of uniformity,
and that fact is admitted.
***
Glance at
If those possessions are inhabited by alien races, differing
from us in religion, customs, laws, methods of taxation, and modes of thought,
the administration of government and justice according to Anglo-Saxon
principles may for a time
be impossible, and the question at once arises whether large concessions ought
not to be made for a time, that ultimately our own theories may be carried out
and the blessings of a free government under the Constitution extended to them.
We decline to hold that there is anything in the Constitution to forbid such
action.
NB the conditional
nature of the first sentence established by the lead word in the quote: “if.” In other words the
sentence speaks to what could
happen, not past events. Surrounding paragraphs make this determination
inevitable.
If Congress had power to acquire new territory, which is conceded,
that power was not hampered by the constitutional provisions. If, upon the other hand,
we assume
Page 182 U.
S. 286
“…that the territorial clause of the Constitution was not intended
to be restricted to such territory as the United States then possessed, there
is nothing in the Constitution to indicate that the power of Congress in
dealing with them was intended to be restricted by any of the other provisions.
***
In short, there is absolute silence upon the
subject. The executive and
legislative departments of the government have for more than a century
interpreted this silence as precluding the idea that the Constitution attached
to these territories as soon as acquired, and unless such interpretation be
manifestly contrary to the letter or spirit of the Constitution, it should be followed by the judicial
department.[11] Cooley, Const.Lim. secs. 81-85. Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53, 111 U. S. 57; Field
v. Clark, 143 U. S. 649, 143 U. S. 691.
Its conditional nature is emphasized by the first sentence of
the quote:
Patriotic and intelligent men may differ widely
as to the desireableness [sic] of this or that acquisition,
but this is solely a political
question.
If Guam historian Anne Perez
Hattori had noticed the
hypothetical stated at pp. 286 et seq.:
“…the judgment of
the Supreme Court, the new
territories was inhabited by alien, quote alien, races and they may not
be able to understand Anglo-Saxon laws therefore the constitution doesn’t have
to apply.”
and had she read the triple
rationales decidendi employed by the
Supreme Court she might not have been so willing to be used by
John Oliver
as his “straight man.”
[12]
There is much to learn from the Insular Cases about what an
apparently prescient Chief Justice John
Marshall referred to as an “American Empire.”
University professors could have a role in the learning process:
“…The general public should feel free to
demand more from academics in terms of quality of thought, transparency of
processes and, most of all, honesty and integrity. The public should feel free
to respond with ideas and hold them accountable, especially if they use the
title professor….”
[13]
Best regards,
Bob
[1] As pointed out infra,
Downes had three rationales decidendi.
A better place to look for “unincorporated” is Balzac
v. Porto Rico.
[2] Of course American laws do apply in Guam, cf. the CNMI re labor and immigration
laws.
[3] “Anyone
who uses the title professor has a special responsibility to be truthful. The
general public should feel free to demand more from academics in terms of
quality of thought, transparency of processes and, most of all, honesty and
integrity.
At UOG, we have many academics who willingly share their
ideas in public. The public should feel free to respond with ideas and hold
them accountable, especially if they use the title professor. Academic freedom
isn’t free, there are many responsibilities associated with it.” Words that are
familiar to you, Robert.
[4] Armstrong v.
United
States
Crossman v. United
States
De Lima v. Bidwell
Dooley v. United States 182 U.S. 222 (1901)
Dooley v. United States,
183 U.S.
151 (1901)
Downes v. Bidwell
Fourteen Diamond Rings v. United States
Goetze v. United
States
Huus v. New York
and Porto Rico Steamship Co.
[5] After the Treaty of Paris the US changed the
name of the island to Porto Rico, probably in deference to English speaking
Americans. The name was changed back ot Puerto Rico
in 1932.
[6] Oklahoma, New Mexico and Arizona
(and of course Alaska and Hawaii) had not yet been admitted.
[7] The Foraker Act, enacted 1900, was the first Organic
Act for Puerto Rico. It established civil
government, a US District Court and a non voting Resident Commissioner to
Congress. § 3 of the Foraker Act provided for an internal tariff which would
arguably violate the Uniformity Clause of the Constitution. Thus the procedural
challenge in Downes v. Bidwell.
‘Sec. 3. That on and after the passage of this Act all
merchandise coming into the United States from Porto Rico and coming into Porto
Rico from the United States shall be entered at the several ports of entry upon
payment of fifteen per centum of the duties which are required to be levied,
collected, and paid upon like articles of merchandise imported from foreign
countries;…”
[8] Guam is not an
unincorporated territory because of the Insular Cases. Guam is an
unincorporated territory because the Congress said it is: “Unincorporated Territory
-- Government. Guam is hereby declared to be an unincorporated territory of the
United States and the
capital and seat of government thereof shall be located at the city of Agaña, Guam.” 48 USC §
1421a. (NB the effect of deleting the
first syllable of the first word!)
[9] Guam became a colony of the United States upon enactment of the Organic Act,
48 USC § 1421 et seq. Before the
Organic Act, the President of the United States as commander-in-chief ruled Guam awaiting the determination of Congress. (See fn 10.)
[10]Treaty of
Paris:
Article IX. “Spanish subjects, natives of the Peninsula,
residing in the territory over which Spain by the present treaty
relinquishes or cedes her sovereignty, may remain in such territory…
***
“The civil
rights and political status of the native inhabitants of the territories hereby
ceded to the United States
shall be determined by the Congress.”
[11] Undoubtedly a
reference to, the development of
what Chief Justice Marshall called “the American empire.”
[12]
She might have even accurately quoted the opinion!
