Opinion written by Chief J. Stone

IMPORTANCE OF THIS CASE: This Supreme Court decision confirmed, with finality, the doctrine that there are two "United States"; one under the Constitution, and one not under the Constitution. This latter "United States" consists of all people or other entities which are under federal "jurisdiction". The Court stated, with sobering candor, that these have no constitutional rights!

This decision is not taught in schools.

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The heading of the case says: "Mr. Justice MURPHY, Mr. Justice REED, and Mr. Justice DOUGLAS, dissenting in part; Mr. Justice BLACK and Mr. Justice RUTLEDGE dissenting.

(In other words, this was a far-from-unanimous decision)

Mr. Hooven "imported" bales of hemp and other fibers from the Philippines. He was subjected to an import tax which would have been unconstitutional if his business had been in one of the continental United States. Hooven's point of view was that the Philippines, being a territory of the United States, was under the protection of the Constitution, and that the tax he was being forced to pay on his "imported" hemp was unconstitutional since the hemp was not, technically speaking, being "imported" (any more so than if hemp were moved from New York to New Jersey).

But the Court held that constitutional provisions apply only to the states themselves, and not to the territories of the United States. So the hemp was "imported", and the tax was legal. In other words, the Court decided against him.

The critical part of the Court's decision was its definition of the term "United States", which is now the standard definition found in law dictionaries:

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"The term 'United States' may be used in any one of several senses:

1. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations.
2. It may designate the territory over which the sovereignty of the United States extends, or
3. It may be the collective name of the states which are united by and under the Constitution." [324 U.S. 652 at 671-2]

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The critical question relates to "United States #2" in the definition above. DO THE TERRITORIES HAVE CONSTITUTIONAL RIGHTS, OR NOT?

Here's what the court said:

"That our dependencies, acquired by cession as the result of our war with Spain, are territories belonging to, but not a part of the Union of states under the Constitution, was long since established by a series of decisions in this Court beginning with the Insular* Tax Cases in 1901. This status has ever since been maintained in the practical construction of the Constitution by all the agencies of our government in dealing with our insular possessions. It is no longer doubted that the United States may acquire territory by conquest or by treaty, and may govern it through the exercise of the power of Congress conferred by § 3 of Article IV of the Constitution "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.'

"In exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the United States. And in general the guaranties of the Constitution, save as they are limitations upon the exercise of executive and legislative power when exerted for or over our insular possessions, extend to them only as congress, in the exercise of its legislative power over territory belonging to the United States, has made those guaranties applicable. See Balzac v. Porto Rico, supra." [324 U.S. 652 at 673-4]

* "insular": Of or pertaining to an island or islands.

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In plain English: Inhabitants of the territories and possessions of the United States have no constitutional rights or freedoms, and may be ruled over by Congress in any manner that Congress sees fit!

What's wrong with this? What's wrong is that the federal government, progressively and relentlessly throughout the 20th century, has gone about re-classifying everyone as being "subjects" of federal jurisdiction, with the same rights as people who live in the territories. That is, no rights!

If you file a federal tax return, you are acceding to federal jurisdiction. If you pay into, or draw out of, Social Security, you are acceding to federal jurisdiction. If you dispense or receive medical care under "Medicare", you are acceding to federal jurisdiction. By these, and a variety of other subterfuges, the federal government has re-classified virtually everybody as being a "subject of federal jurisdiction", with, implicitly, NO CONSTITUTIONAL RIGHTS!

This is not taught in school.

The decision in Hooven was the culmination of over a century of deliberation on this very same issue; namely whether inhabitants of federal territories have rights or not. The major prior decision on the question was in a case called "Downes vs. Bidwell", in which the Supreme Court made statements guaranteed to shock anyone concerned with freedom:

All opinions cited below are those of J. Brown, except the dissenting views of J. Harlan.

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Notes:

Constitution, Art. IV, Section 3, Clause 2:

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The result of this case was that "The island of Porto Rico by the treaty of cession became territory appurtenant to the United States, but not a part of the United States, within the revenue clauses of the Constitution, such as art. 1, §8, requiring duties, imposts, and excises to be uniform 'throughout the United States' ". [182 U.S. 244].

"The condition of territory subject exclusively to Federal control, which has not yet acquired that peculiar sovereignty of its own known to our Constitution as statehood, has been aptly described by Chief Justice Marshall as 'a state of infancy* advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained'. Loughborough v. Blake, 5 Wheat. 317, 5 L. ed. 98." [182 U.S. 244 at 247]

*(Now that you know that you are a subject of federal jurisdiction, how do you like this description of yourself?)

"All legislative powers were vested in a Congress consisting of representatives from the several states, but no provision was made for the admission of delegates from the territories, and no mention was made of territories as separate portions of the Union, except that Congress was empowered 'to dispose of and make all* needful rules and regulations respecting the territory or other property belonging to the United States.' " [182 U.S. 244 at 250]

*[Note the word "all". This means, in effect, that Congress can do anything it wants, as long as its actions are not so outrageous as to draw the attention of the public to this unfair (and, as we shall see, unintended) power.]

"It was thought by Chief Justice Taney in the Dred Scott Case, 19 How. 393, 436, 15 L. ed. 691, 713, ...that the power 'to make needful rules and regulations' was not intended to give the powers of sovereignty, or to authorize the establishment of territorial governments ... But, as we observed in De Lima v. Bidwell, the power to establish territorial governments has been too long exercised by Congress and acquiesced in by this court to be deemed an unsettled question. Indeed, in the Dred Scott Case it was admitted to be the inevitable consequence of the right to acquire territory." [182 U.S. 244 at 250]

"...in the act annexing the Republic of Hawaii [i.e., before Hawaii became a state], there was a provision continuing in effect the customs relations of the Hawaiian islands with the United States and other countries, the effect of which was to compel the collection in those islands of a duty upon certain articles, whether coming from the United States or other countries, much greater than the duty provided by the general tariff law then in force. This was a descrimination against the Hawaiian ports wholly inconsistent with the revenue clauses of the Constitution , if such clauses were there operative" [i.e., they were not operative, and the people of Hawaii, at that time, had no constitutional rights!].

"The very treaty with Spain under discussion in this case (i.e., Downes vs. Bidwell) contains similar discriminative provisions, which are apparently irreconcilable with the Constitution, if that instrument be held to extend to these islands immediately upon their cession to the United States." [i.e, people in the Phillipines, although under the rule of America at that time, nevertheless had no constitutional rights!] [182 U.S. 244 at 256]

"That the power over the territories is vested in Congress without limitation, and that this power has been considered the foundation upon which the territorial governments rest, was also asserted by Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 422, 4 L. ed. 579, 605, and in United States v. Gratiot, 14 Pet. 526, 10 L. ed. 573. So, too, in Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1, 34 L. ed. 478, 10 Sup. Ct. Rep. 792, in holding that Congress had power to repeal the charter of the church, Mr. Justice Bradley used the following forecful language: "The power of Congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired." [182 U.S. 244 at 267-8]

With respect to the territory of Louisiana, when acquired from France, and the territorries west of the Rocky mountains, when acquired from Mexico, Justice Bradley (Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1, 34 L. ed. 478, 10 Sup. Ct. Rep. 792) added the following:

"Having rightfully acquired said territories, the United States government was the only one which could impose laws upon them, and its sovereignty over them was complete.

"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 those limitations would exist rather by inference and the general spirit of the constitution, from which Congress derives all its powers, than by any express and direct application of its provisions." (emphasis added; they say "trust us"!). [182 U.S. 244 at 268-9]

(The opinion of the court went on to cite a murder case:)

"In Ross's Case, 140 U.S. 453, sub nom. Ross v. McIntyre, 35 L. ed. 581, 11 Sup. Ct. Rep. 897, petitioner had been convicted by the American consular tribunal in Japan, of a murder committed upon an American vessel in the harbor of Yokohama, and sentenced to death. There was no indictment by a grand jury, and no trial by a petit jury. This court affirmed the conviction, holding that the Constitution had no application, since it was ordained and established "for the United States of America," and not for countries outside of their limits. "The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad"". [182 U.S. 244 at 269]

ANYONE CONCERNED ABOUT THE UNCHECKED GROWTH OF FEDERAL DICTATORIAL POWERS IS SURE TO CRINGE AT READING THE NEXT COMMENT OF THE COURT:

"Grave apprehensions of danger are felt by many eminent men,-a fear lest an unrestrained possession of power on the part of Congress may lead to unjust and oppressive legislation in which the natural rights of territories, or their inhabitants, may be engulfed in a centralized despotism. These fears, however, find no justification in the action of Congress in the past century, nor in the conduct of the British Parliament toward its outlying possessions since the American Revolution. Indeed, in the only instance in which this court has declared an act of Congress unconstitutional as trespassing upon the rights of territories (the Missouri Compromise), such action was dictated by motives of humanity and justice, and so far commanded popular approval as to be embodied in the 13th Amendment to the Constitution. 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." [182 U.S. 244 at 280]

Do you want your freedom to depend upon the "Natural justice inherent in the Anglo-Saxon character", or do you want your legal and constitutional rights?

After quoting extensively from the majority opinion, Harlan, showing himself to be the only member of the Court who really thought about America's future, said:

"These are words of weighty import. They involve consequences of the most momentous character. I take leave to say that if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system of government will be the result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism.

Although from the foundation of the government this court had held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104), we are now informed that Congress possesses powers outside of the Constitution (emphasis not added), and may deal with new territory, acquired by treaty or conquest, in the same manner as other nations have been accustomed to act with respect to territories acquired by them (emphasis not added). In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States.

"The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,-the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.

"The idea prevails with some-indeed, it found expression in arguments at the bar-that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects, proceed outside of the Constitution. The glory of our American system of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be passed by the government it created, or by any branch of it, or even by the people who ordained it, except by amendment or change of its provisions. 'To what purpose,' Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, 'are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.'

"The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon what, in the opinion referred to, is described as 'certain principles of natural justice inherent in 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.' They proceeded upon the theory-the wisdom of which experience has vindicated-that the only safe guaranty against governmental oppression was to withhold or restrict the power to oppress. They well remembered that Anglo-Saxons across the ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had sought, by military force, to establish a government that could at will destroy the privileges that inhere in liberty. They believed that the establishment here of a government that could administer public affairs according to its will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution enumerates the powers which Congress and the other departments may exercise,-leaving unimpaired, to the states or the people, the powers not delegated to the national government nor prohibited to the states. That instrument so expressly declares in the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. (emphasis added) No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution." [182 U.S. 244 at 379-82]

[That the founders intended the Constitution to reign supreme even in territories is indicated by the following:]

"By the express words of the Constitution, every Senator and Representative is bound, by oath or affirmation, to regard it as the supreme law of the land. When the constitutional convention was in session there was much discussion as to the phraseology of the clause defining the supremacy of the Constitution, laws, and treaties of the United States. At one stage of the proceedings the convention adopted the following clause: 'This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several states (emphasis not added) and of their citizens and inhabitants, and the judges of the several states shall be bound thereby in their decision, anything in the constitutions or laws of the several states to the contrary notwithstanding.' This clause was amended, on motion of Mr. Madison, by inserting after the words 'all treaties made' the words 'or which shall be made.' If the clause, so amended had been inserted in the Constitution as finally adopted, perhaps there would have been some justification for saying that the Constitution, laws, and treaties of the United States constituted the supreme law only in the states, and that outside of the states the will of Congress was supreme. But the framers of the Constitution saw the danger of such a provision, and put into that instrument in place of the above clause the following: 'This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.' Meig's Growth of the Constitution, 284, 287. That the convention struck out the words 'the supreme law of the several states,' and inserted 'the supreme law of the land,' is a fact of no little significance. The 'land' referred to manifestly embraced all the people and all the territory, whether within or without the states, over which the United States could exercise jurisdiction or authority." [182 U.S. 244 at 382-3]

A comment on so-called "emergencies" :

"The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued. The People have decreed that it shall be the supreme law of the land at all times. When the acquisition of territory becomes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make 'concessions' that are inconsistent with its provision. The authority to make such concessions implies the existence in Congress of power to declare that constitutional provisions may be ignored under special or embarrassing circumstances. No such dispensing power exists in any branch of our government. The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies." [182 U.S. 244 at 384-5]

[What about the necessity for the United States to "compete" with other nations?]

"We heard much in argument about the 'expanding future of our country.' It was said that the United States is to become what is called a 'world power;' and that if this government intends to keep abreast of the times and be equal to the great destiny that awaits the American people, it must be allowed to exert all the power that other nations are accustomed to exercise. My answer is that the fathers never intended that the authority and influence of this nations should be exerted otherwise than in accordance with the Constitution. If our government needs more power than is conferred upon it by the Constitution, that instrument provides the mode in which it may be amended and additional power thereby obtained." [182 U.S. 244 at 386].

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