Downes v. Bidwell

1. This is a very difficult case, perhaps in part because none of the writers are among the best ever to have occupied our highest court. But imagine if Congress imposed a duty on goods shipped from Texas to other states in the United States or imposed a duty on goods from states not conforming to various environmental regulations. Surely this would be mischievious and would be a way whereby states could gang up on a disfavored state or states not following certain policies.

The Constitution would indeed appear to prohibit such a Congressional Act in at least two ways. First, Clause 5 of section 9 reads: "No Tax or Duty shall be laid on Articles exported from any State."  So the Act would be imposing an illegal export duty. The prohibition appears absolute: it's not a requirement that export duties be uniform, it's an outright prohibition.

Second, to the extent the exports were made by sea, Clause 6 of section 9 would create a problem. It reads: "nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." So perhaps even if good were being transshipped from, say, England to Philadelphia and thence to Galveston, they couldn't have to pay duties more than once.

This case is made difficult, however, because Puerto Rico, whatever else it may be, is not and has never been a State. So, textually these section 9 provisions do not apply.  There are two ways around this problem. The first is to argue that the Puerto Rico tax infringes the principle behind these two section 9 prohibitions. But this argument runs into the problem that the Constitution does not appear to embrace a principle, rather it issues specific words. (But see Griswold v. Connecticut and a lot of structure cases).

The second way around the issues with the section 9 provisions is to argue that there is yet a third provision of the Constitution that matters: the uniform duties clause. Contained in section 8 of Article I, it reads: "all Duties, Imposts and Excises shall be uniform throughout the United States." Now, the problem here is that the Foraker Act does not say that New Jersey pays a 20% duty on goods of Puerto Rican origin whereas Virginia pays a 10% duty. Viewed as an import duty, the duty is indeed uniform throughout the United States. It's only if one views it as an export duty that there is a disuniformity in that Puerto Rican exports are paying a tarriff that Massachusetts exports are not. But ... Why would we have a separate prohibition on export duties on section 9 if the uniformity clause of section 8 already required uniformity?  Possibly the answer is that, standing alone, section 8 would permit a 20% export duty on goods traveling between states. It would be OK so long as it was uniform. Maybe we need section 9 to prohibit that too. I will confess I find the interplay of these provisions quite challenging.

In any event, what's interesting (to me) is that none of the seemingly logical reasoning made above finds its way into the opinion. And, instead, we get bogged down in a discussion of Puerto Rico and the nature of territories and sovereignty.

2. Does Brown say at line 53 that the Constitution does not apply in the territories? Is that a necessary part of this case? If so, what are the implications? Could Congress bar criticism of the President in the territories? Could it establish Judaism as the official religion of Guam? Could it pass laws authorizing torture of persons convicted of burglary?

3. This case is well known for the proposition that the Constitution applies in the organized territories, but perhaps not all of the Constitution and perhaps not in the unorganized territories (of which they are still one or two).  Why is that? is there a clear principle for figuring out which provisions apply and which are just peculiar to Anglo-Saxon culture that the majority assumes is behind some of our constitution?

4. What racial assumptions underlie this opinion? Are they necessary to dispose of the case? Do you see the irony of Justice Brown criticizing Dred Scott (cited several times without apparent shame) for engaging in lots of dicta and, yet, the amount of apparent dicta in this opinion? How should this case have been decided?

5. Do you think the Constitution has anything to say about the United States holding permanent territories? Do you think the Constitution requires persons born in territories to be citizens? If not, does Congress have the power to grant them citizenship.

6. What is the relationship between the constitutional rights of people in the terriitories and the rights of indigenous persons?

7. I think it's interesting how legal regulation of slavery, the territories and indigenous persons all ties together.