17 April 1900 , US Senate, Washington DC, USA
It is not my purpose . . . to discuss the general considerations which affect any acquisition of sovereignty by the American people over the Philippine Islands, which has been or may be proposed. I am speaking today only of the theory of constitutional interpretation propounded by the senator from Connecticut. If at any time hereafter the senator shall seek to put his theories into practice by reducing to subjection a distant people, dwelling in the tropics, aliens in blood, most of them Moslem in faith, incapable to speak or comprehend our language, or to read or to write any language, to whom the traditions and the doctrines of civil liberty are unknown, it will be time to point out what terrible results and penalties this departure from our constitutional principles will bring upon us. . . .
The question is this: Have we the right, as doubtless we have the physical power, to enter upon the government of ten or twelve million subject people without constitutional restraint? Of that question the senator from Connecticut takes the affirmative. And upon that question I desire to join issue.
Mr. President, I am no strict constructionist. I am no alarmist. I believe this country to be a nation, a sovereign nation. I believe Congress to possess all the powers which are necessary to accomplish under the most generous and liberal construction the great objects which the men who framed the Constitution and the people who adopted it desired to accomplish by its instrumentality. I was bred, I might almost say I was born, in the faith which I inherited from the men whose blood is in my veins, of the party of Hamilton and Washington and Webster and Sumner, and not in that of Madison or Calhoun or the strict constructionists. . . .
I affirm that every constitutional power, whether it be called a power of sovereignty or of nationality - neither of which phrases is found in terms in the Constitution - or whether it be a power expressly declared and named therein, is limited to the one supreme and controlling purpose declared as that for which the Constitution itself was framed: "In order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."
Now, the liberal constructionists claim that everything which is done to accomplish either of these purposes, unless expressly prohibited, may be constitutionally done by the lawmaking power. And in that I agree with them. The strict constructionist claims, and has claimed from the time of Madison, that these objects can only be accomplished after ways and fashions expressly described in the Constitution or necessarily implied therein. And in that I disagree with him.
But when the senator from Connecticut undertakes to declare that we may do such things not for the perfect union, the common defense, the general welfare of the people of the United States, or the securing of liberty to ourselves and our children, but for any fancied or real obligation to take care of distant peoples beyond our boundaries, not people of the United States, then I deny his proposition and tell him he can find nothing either in the text of the Constitution or the exposition of the fathers, or the judgments of courts from that day to this, to warrant or support his doctrine.
Further, the 1st Article of the Constitution declares: "All legislative powers herein granted shall be vested in a Congress of the United States." What becomes, in the light of that language, of the senator's repeated assertion that powers not denied may be so exercised? Is not legislative power a power of sovereignty? Therefore, according to the senator's logic, every power of legislation that any foreign government - legislative, constitutional, limited, or despotic - may exercise may be exercised by us. We have heard of limited monarchies, constitutional monarchies, despotisms tempered by assassination; but the logic of the senator from Connecticut makes a pure, unlimited, untempered despotism without any relief from assassins. . . .
But the question with which we now have to deal is whether Congress may conquer and may govern, without their consent and against their will, a foreign nation, a separate, distinct, and numerous people, a territory not hereafter to be populated by Americans, to be formed into American states and to take its part in fulfilling and executing the purposes for which the Constitution was framed, whether it may conquer, control, and govern this people, not for the general welfare, common defense, more perfect union, more blessed liberty of the people of the United States, but for some real or fancied benefit to be conferred against their desire upon the people so governed or in discharge of some fancied obligation to them, and not to the people of the United States.
Now, Mr. President, the question is whether the men who framed the Constitution, or the people who adopted it, meant to confer that power among the limited and restrained powers of the sovereign nation that they were creating. Upon that question I take issue with my honorable friend from Connecticut.
I declare not only that this is not among the express powers conferred upon the sovereignty they created, that it is not among the powers necessarily or reasonably or conveniently implied for the sake of carrying into effect the purposes of that instrument, but that it is a power which it can be demonstrated by the whole contemporaneous history and by our whole history since until within six months they did not mean should exist - a power that our fathers and their descendants have ever loathed and abhorred - and that they believed that no sovereign on earth could rightfully exercise it and that no people on earth could rightfully confer it. They not only did not mean to confer it but they would have cut off their right hands, every one of them, sooner than set them to an instrument which should confer it. . . .
Mr. President, the persons who favor the ratification of this treaty without conditions and without amendment differ among themselves certainly in their views, purposes, and opinions, and as they are so many of them honest and well-meaning persons, we have the right to say in their actual and real opinions. In general, the state of mind and the utterance of the lips are in accord. If you ask them what they want, you are answered with a shout: "Three cheers for the flag! Who will dare to haul it down? Hold onto everything you can get. The United States is strong enough to do what it likes. The Declaration of Independence and the counsel of Washington and the Constitution of the United States have grown rusty and musty. They are for little countries and not for great ones. There is no moral law for strong nations. America has outgrown Americanism."
Mr. President, when I hear from some of our friends this new doctrine of constitutional, interpretation, when I hear attributed to men in high places, counselors of the President himself, that we have outgrown the principles and the interpretation which were sufficient for our thirteen states and our 3 million people in the time of their weakness, and by which they have grown to 75 million and forty-five states, in this hour of our strength it seems to me these counselors would have this nation of ours like some prosperous thriving youth who reverses suddenly all the maxims and rules of living in which he has been educated and says to himself, "I am too big for the Golden Rule. I have outgrown the Ten Commandments. I no longer need the straight waistcoat of the moral law. Like Jeshuron I will wax fat and kick." . . .
In general, the friends of what is called imperialism or expansion content themselves with declaring that the flag which is taken down every night and put up again every morning over the roof of this Senate chamber, where it is in its rightful place, must never be taken down where it has once floated, whether that be its rightful place or not - a doctrine which . . . is not only without justification in international law, but, if it were implanted there, would make of every war between civilized and powerful nations a war of extermination or a war of dishonor to one party or the other.
If you cannot take down a national flag where it has once floated in time of war, we were disgraced when we took our flag down in Mexico and in Vera Cruz, or after the invasion of Canada; England was dishonored when she took her flag down after she captured this capital; and every nation is henceforth pledged to the doctrine that wherever it puts its military foot or its naval power with the flag over it, that must be a war to the death and to extermination or the honor of the state is disgraced by the flag of that nation being withdrawn.
[Hoar then continues his discussion of the constitutionality of imperialism. Move on to his broader ideological point.]
I have made a careful analysis of the constitutional argument of the senator from Connecticut. I think I can do it justice. I have not followed the precise order of his statements. But I have put them in logical order. He says:
First, that the United States is a nation, a sovereign.
Second, that as a nation it possesses every sovereign power not reserved in the Constitution to the states or the people.
Third, that the right to acquire territory was not reserved, and is therefore an inherent sovereign right.
Fourth, that it is a right upon which there is no limitation and that in regard to which there is no qualification.
Fifth, that in the right to acquire territory is found the right to govern it.
Sixth, that this right to govern it is also a sovereign right. . . .
Seventh, that it is a right without constitutional limit. . . .
This power to dispose of the territory or other property belonging to the United States and to make all needful rules and regulations respecting it, and the power implied from that provision, to acquire and hold territory or other property, like other constitutional powers, is a power to be exercised only for constitutional purposes. It is like the power to acquire and dispose of ships, or cannon, or public buildings, or a drove of pack mules, or a library, to be exercised in accomplishment of the purposes of the Constitution and not to be exercised where it is not reasonably necessary or convenient for the accomplishment of those purposes.
We have no more right to acquire land or hold it, or to dispose of it for an unconstitutional purpose, than we have a right to fit out a fleet or to buy a park of artillery for an unconstitutional purpose. Among the constitutional purposes for which Congress may acquire and hold territory and other property are the building of forts, and the establishment of post offices and subtreasuries and custom houses. In all these cases it is accomplishing a clearly constitutional purpose.
One of the constitutional purposes is the enlargement of the country by the admission of new states, and therefore Congress may lawfully acquire, hold, and dispose of territory with reference to the accomplishment of that great constitutional purpose, among others. It may also acquire adjoining or outlying territory, dispose of it, make rules and regulations for it for the purposes of national security and defense, although it may not be expected that the territory so acquired, held, and disposed of shall ever come into the Union as a state. That is, as many people think, the case of Hawaii.
Now, the disposing of and the making rules and regulations for territory acquired for either of these purposes necessarily involves the making laws for the government of the inhabitants - forever, if the territory is not to come in as a state, or during the growing and transition period if and until it shall come in as a state.
But, Mr. President, it is to be observed, and it should not be forgotten, that all this is a constitutional provision which looks chiefly at the land and territory as mere property. And it applies, so far as its terms and its general spirit and purpose are concerned, equally to public lands within a state as to those which are without it. And there is no other provision in the Constitution for making rules and regulations for the territory of the United States or its other property, in the case where the public lands are in Alabama or Florida or Iowa, than where they are in Alaska or Arizona or wherever the public lands are outside any state jurisdiction.
The framers of the Constitution were not thinking mainly and chiefly, when they enacted that clause, of lawmaking, of the government of men, of the rights of citizenship. They were thinking of public property; and although the lawmaking, the rights of men, citizenship have to be recognized from the necessity of the case where the public property is a large tract of land fit for human settlement, yet the language they used and the thought in their minds treated the element of property as the principal, and the element of citizenship as something only temporary and passing, only to last until the property, territory, and inhabitants can be given over to freedom under the jurisdiction of a state, to be admitted as an equal member of our political partnership.
And two things about this clause are quite significant. One is that it is not contained in the article which gives Congress general legislative powers, but is sandwiched in between the section providing for the admission of new states and the section providing for guaranteeing to every state a republican form of government, showing that they were not thinking of conferring a general legislative power over the inhabitants and were only thinking, so far as the inhabitants of a territory were concerned, of the transition or expectant period while they were awaiting admission to statehood. And, Mr. President, you are not now proposing to acquire or own property in the Philippines with dominion as a necessary incident; you are not thinking of the ownership of land there. You propose, now, to acquire dominion and legislative power and nothing else. Where in the Constitution is the grant of power to exercise sovereignty where you have no property? . . .
My proposition, summed up in a nutshell, is this: I admit you have the right to acquire territory for constitutional purposes, and you may hold land and govern men on it for the constitutional purpose of a seat of government or for the constitutional purpose of admitting it as a state. I deny the right to hold land or acquire any property for any purpose not contemplated by the Constitution. The government of foreign people against their will is not a constitutional purpose but a purpose expressly forbidden by the Constitution. Therefore I deny the right to acquire this territory and to hold it by the government for that purpose. . . .
Now, I claim that under the Declaration of Independence you cannot govern a foreign territory, a foreign people, another people than your own; that you cannot subjugate them and govern them against their will, because you think it is for their good, when they do not; because you think you are going to give them the blessings of liberty. You have no right at the cannon's mouth to impose on an unwilling people your Declaration of Independence and your Constitution and your notions of freedom and notions of what is good. That is the proposition which the senator asserted. He does not deny it now.
If the senator gets up and says, "I will not have those people in Iloilo subdued; I 'II not govern the Philippine Islands unless the people consent; they shall be consulted at every step," he would stand in a different position. That is what I am complaining of. When I asked the senator during his speech whether he denied that just governments rested on the consent of the governed, he said, in substance, that he did deny it - that is, his answer was "some of them"; and he then went on to specify places where government did not so rest.
The senator says, "Oh, we governed the Indians against their will when we first came here," long before the Declaration of Independence. I do not think so. I am speaking of other people. Now, the people of the Philippine Islands are clearly a nation - a people three and one-third times as numerous as our fathers were when they set up this nation. If gentlemen say that because we did what we did on finding a great many million square miles of forests and a few hundred or thousand men roaming over it without any national life, without the germ of national life, without the capacity for self-government, without self-government, without desiring self-government, was a violation of your principle, I answer, if it was a violation of your principle it was wrong.
It does not help us out any to say that 150 years ago we held slaves or did something else. If it be a violation of your principle, it is wrong. But if, as our fathers thought and as we all think, it was not a violation of the principle because there was not a people capable of national life or capable of government in any form, that is another thing.
But read the account of what is going on in Iloilo. The people there have got a government, with courts and judges, better than those of the people of Cuba, who, it was said, had a right to self-government, collecting their customs; and it is proposed to turn your guns on them, and say, "We think that our notion of government is better than the notion you have got yourselves." I say that when you put that onto them against their will and say that freedom as we conceive it, not freedom as they conceive it, public interest as we conceive it, not as they conceive it, shall prevail, and that if it does not we are to force it on them at the cannon's mouth - I say that the nation which undertakes that plea and says it is subduing these men for their good when they do not want to be subdued for their good will encounter the awful and terrible rebuke, "Beware of the leaven of the Pharisees, which is hypocrisy."