The Essentials of American Constitutional Law

by Francis Newton Thorpe

[347] Downes v. Bidwell, supra.

[348] Idem. In Brown v. Walker, 161 U. S., 591 (1896), (i. e., five years before the decision in Downes v. Bidwell), the Court declared: “The object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, etc.”

[349] The dissenting opinions in Downes v. Bidwell should be read; powerful as they are, they are not the opinion of the Court and do not declare what the law is.

[350] Cohens v. Virginia, 6 Wheaton, 414 (1821).

[351] The power of Congress over territory incorporated into the United States,—that is, over territory over which the Constitution has been extended by Congress is limited by the Constitution: Thompson v. Utah, 170 U. S., 343 (1898). Rasmussen v. United States, 197 U. S., 516 (1905); but over territory not so incorporated, see Hawaii v. Mankichi, 190 U. S., 197 (1903); Dorr v. U. S., 195 U. S., 138 (1904). The decisions support the doctrine that once the Constitution has been extended over territory, it cannot be withdrawn (Downes v. Bidwell) and consequently, all the limitations which by the Constitution affect Congress operate as limitations of its power over the territory, and therefore operate as fundamental rights and privileges of the inhabitants of such territory.

[352] So throughout The Federalist, and notably in Nos. xliv., xlv., li.

[353] But note the Sixteenth Amendment.

[354] First Inaugural. Works (Century Ed.), ii., 7.

[355] Art. ii., 1: 2; Amendment XII.

[356] In 1787 distrust of the people, among the framers of the Constitution, explains the constitutional provision. James Wilson urged election of the President by popular vote. South Carolina in 1860 was the last State to appoint presidential electors by its Legislature. There is widespread belief in America now that the President should be elected by direct popular vote, as are Congressmen and United States Senators. At present the “electoral vote” is 531; the person receiving the majority of these 531 votes is President of the United States. By American laws there are upwards of 20,000,000 voters; by American constitutional law, the person receiving 266 “electoral” votes is President.