108. Territorial courts are to be distinguished from courts of the United States. They are not federal courts as are the Supreme Court and the inferior courts, namely, the Circuit Courts, the District Courts, or the Court of Claims. Neither are they State courts.
The Constitution being made only for the people of the United States,—that is, for the people of the United States inhabiting States,[266] does not apply or extend to the territories unless extended by act of Congress. The courts in a territory are created by Congress and have such powers (or jurisdiction) as the act creating them provides. But in creating them, Congress is limited by the Constitution.[267] Congress also creates courts martial, but the jurisdiction of these courts is always subject to inquiry by civil courts. Fundamentally, the reason here is the supremacy of the civil over the military authority in the American system of government.
109. A problem not infrequently arising in courts of law is the solution of some political question involved. All political questions are questions for the political department of the government to settle; they lie wholly outside of the jurisdiction of the courts. Thus the courts never decide as to the wisdom or folly of an executive or legislative act,—and in one form or another, every act of Congress or President is politically wise or unwise according to the political belief of the critic. Nor do the debates over an act fix the meaning of the act, with the court. Where the court was asked to refer to the debates in Congress to determine the meaning of the act, it was said:
All that can be determined from the debates and reports is that various members had various views, and we are left to determine the meaning of this act, as we determine the meaning of other acts, from the language used therein. There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.[268]
The reason, [continues the court], is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other, the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it passed.
110. In 1828 the Supreme Court sustained as a constitutional exercise of the war power the right of the United States to acquire territory by conquest or treaty.[269] The issue in the case was “the relation in which Florida (at the time a Territory) stands to the United States.” It was an issue in law, not in politics. Whether A or B is the lawful governor of a State is an issue, when legally drawn, for the State courts; but whether a community calling itself a State, is a member of the Union, or should be admitted into it, under the Fourth Article of the Constitution is a political question and is for Congress to decide.
It rests with Congress to decide what government is the established one in a State. For as the United States guarantees to each State a republican form of government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.[270]
The right to decide such a political question is in Congress and not in the courts.[271]
111. The final authority of American courts of law to construe statutes and constitutions is distinctive. The court pronounces a law unconstitutional and thus expounds the constitution. “This results,” says Cooley, “from the nature of its jurisdiction.” Chief Justice Marshall, in 1803, first applied this principle in a Federal court:
The Government of the United States has been emphatically termed a government of laws and not of men.
The Constitution is the supreme law of the land.
It is emphatically the province and duty of the judicial department to say what the law is.[272]
In these words is stated the essential doctrine of judicial supremacy. As the doctrine is fundamental, the reason for it is essential to a proper understanding of its vast import: