The Constitution of the United States of America: Analysis and Interpretation Part 128

POWER OF CONGRESS OVER THE TERRITORIES

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a State legislature might act.[270] It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[271] which will then be invested with all legislative power except as limited by the Const.i.tution of the United States and acts of Congress.[272] In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[273] The const.i.tutional guarantees of private rights are applicable in territories which have been made a part of the United States by Congressional action,[274] but not to unincorporated territories.[275] Alaska is of the former description,[276] while the status of Hawaii appears to be doubtful.[277] Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section rather than from article IV.[278] Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by const.i.tutional courts.[279]

Section 4. 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.

A Republican Form of Government

It was established in the pioneer case of Luther _v._ Borden,[280] that questions arising under this section are political, not judicial, in character, and that "it rests with Congress to decide what government is the established one in a State * * * as well as its republican character."[281] Upon Congress also rested the duty to restore republican governments to the States which seceded from the Union at the time of the Civil War. In Texas _v._ White[282] the Supreme Court declared that the action of the President in setting up provisional governments at the end of the war was justified, if at all, only as an exercise of his powers as Commander in Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the questions were not justiciable in character, the Supreme Court has refused to consider whether the adoption of the initiative and referendum,[283] or the delegation of legislative power to other departments of government[284] is compatible with a republican form of government. This guarantee does not give the Supreme Court jurisdiction to review a decision of a State court sustaining a determination of an election contest for the office of governor made by a State legislature under the authority of a State const.i.tution.[285] Inasmuch as women were denied the right to vote in most, if not all, of the original thirteen States, it was held, prior to the adoption of Amendment XIX, that a State government could be challenged under this clause by reason of the fact that it did not permit women to vote.[286]

Protection Against Domestic Violence

The Supreme Court also held in Luther _v._ Borden[287] that it rested with Congress to determine upon the means proper to fulfill the const.i.tutional guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. Instead, Congress had, by the act of February 28, 1795,[288] authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President "must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress"[289] and that his determination was not subject to review by the courts.

DECLINE IN IMPORTANCE OF THIS GUARANTY

With the recognition in the Debs Case[290] of the power and duty of the Federal Government to use "the entire strength of the Nation * * * 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 Const.i.tution to its care,"[291] this clause has declined in importance.

When that Government finds it necessary or desirable to use force to quell domestic violence, its power to protect the property of the United States, to remove obstructions to the United States mails, or to protect interstate commerce from interruption by labor disputes or otherwise, usually will furnish legal warrant for its action, without reference to this provision.[292]

Notes

[1] Clark _v._ Graham, 6 Wheat. 577 (1821), is an early case in which the Supreme Court enforced this rule.

[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. -- 905 28 U.S.C. -- 687.

[3] Mankin _v._ Chandler & Co., 2 Brock. 125, 127 (1823).

[4] 7 Cr. 481 (1813). _See_ also Everett _v._ Everett, 215 U.S. 203 (1909); Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878).

[5] On the same basis, a judgment cannot be impeached either in or out of the State by showing that it was based on a mistake of law. American Exp. Co. _v._ Mullins, 212 U.S. 311, 312 (1909); Fauntleroy _v._ Lum, 210 U.S. 230 (1908); Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146 (1917); Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915).

[6] 3 Wheat. 234 (1818).

[7] 13 Pet. 312 (1839). _See also_ Bacon _v._ Howard, 20 How. 22, 25 (1858); Bank of Ala. _v._ Dalton, 9 How. 522, 528 (1850); Great Western Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896); Christmas _v._ Russell, 5 Wall. 290, 301 (1866); Wisconsin _v._ Pelican Insurance Co., 127 U.S.

265, 292 (1888).

[8] Cole _v._ Cunningham, 133 U.S. 107, 112 (1890). _See also_ Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935).

[9] Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley _v._ Donoghue, 116 U.S. 1, 3 (1885). _See also_ Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green _v._ Van Buskirk, 7 Wall. 139, 140 (1869); Roche _v._ McDonald, 275 U.S. 449 (1928); Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933).

[10] Sistare _v._ Sistare, 218 U.S. 1 (1910).

[11] Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). _See also_ Fall _v._ Eastin, 215 U.S. 1 (1909).

[12] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268, 275-276 (1935).

[13] Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873); Robertson _v._ Pickrell, 109 U.S. 608, 610 (1883).

[14] Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940). _See also_ Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890).

[15] National Exchange Bank _v._ Wiley, 195 U.S. 257, 265 (1904). _See also_ Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).

[16] Harding _v._ Harding, 198 U.S. 317 (1905). The following cases further ill.u.s.trate the application of the clause when its protection is sought by a defendant. Such claim must be specific, Wabash R. Co. _v._ Flannigan, 192 U.S. 29, 37 (1904). _See also_ American Exp. Co. _v._ Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to establish the failure of a court to give to decrees of a federal court and the court of another State the due effect to which they are ent.i.tled. Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567, 573 (1903).

However, by defending on the merits, after pleading and relying upon a foreign judgment, a party does not waive the benefits of an alleged estoppel arising from the foreign judgment. Harding _v._ Harding, 198 U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a bar to suit in another jurisdiction. Swift _v._ McPherson, 232 U.S. 51 (1914). Nor is an entry of discontinuance. In allowing the plaintiff to show that such entry of discontinuance was not intended by the parties as a release and satisfaction of the cause of action, but was the result of a promissory agreement by the defendant which was never complied with, the Court in the forum State was not refusing full faith and credit to the judgment. Such evidence was properly allowed, not to contradict the legal import of said judgment, but to show the true meaning of the parties to the suit in agreeing upon its discontinuance.

Jacobs _v._ Marks, 182 U.S. 583, 593 (1901).

[17] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373 (1903).

[18] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke for the Court in both cases, a.s.serted in his opinion in the latter that the New York statute was "directed to jurisdiction," the Mississippi statute to "merits," but four Justices could not grasp the distinction.

[19] Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes again spoke for the Court. _See also_ Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434 (1919).

[20] Broderick _v._ Rosner, 294 U.S. 629 (1935), affirmed in Hughes _v._ Fetter, 341 U.S. 609 (1951).

[21] Union National Bank _v._ Lamb, 337 U.S. 38 (1949); _see also_ Roche _v._ McDonald, 275 U.S. 449 (1928).

[22] Embry _v._ Palmer, 107 U.S. 3, 13 (1883).

[23] t.i.tus _v._ Wallick, 306 U.S. 282, 291-292 (1939).

[24] Morris _v._ Jones, 329 U.S. 545 (1947).

[25] Thus why should not a judgment for alimony be made directly enforceable in sister States instead of merely furnishing the basis of an action in debt? _See_ Thompson _v._ Thompson, 226 U.S. 551 (1913).

[26] Board of Public Works _v._ Columbia College, 17 Wall. 521, 528 (1873). _See also_ Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487 (1915); Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Brown _v._ Fletcher, 210 U.S. 82 (1908); Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington _v._ Attrill, 146 U.S.

657, 685 (1892). However a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. _See also_ Rogers _v._ Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915).

[27] _See_ Cooper _v._ Reynolds, 10 Wall. 308 (1870).

[28] 11 How. 165 (1850).

[29] Justice Johnson, dissenting in Mills _v._ Duryee, 7 Cr. 481 (1813), had said: "There are certain eternal principles of justice which never ought to be dispensed with, and which Courts of justice never can dispense with but when compelled by positive statute. One of those is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction, by being found within their limits." Ibid. 486.

[30] 95 U.S. 714 (1878).

[31] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). _See also_ Wetmore _v._ Karrick, 205 U.S. 141 (1907).

[32] Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).

_See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); Galpin _v._ Page, 18 Wall. 350 (1874); Old Wayne Mutual Life a.s.so. Co. _v._ McDonough, 204 U.S. 8 (1907).

[33] Reynolds _v._ Stockton, 140 U.S. 254 (1891).

[34] Renaud _v._ Abbott, 116 U.S. 277 (1886); Jaster _v._ Currie, 198 U.S. 144 (1905).