15. Why have federal judges been criticized for issuing injunctions?
16. When may an appeal be taken from a state court to a federal court?
17. The Supreme Court has always refused to decide "political" controversies. What is a "political" as opposed to a "legal" controversy? Give examples.
CHAPTER XIX
GOVERNMENT OF THE TERRITORIES AND DEPENDENCIES
Power of Congress over the Territories.—The Constitution expressly confers upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In dealing with the territories the powers of Congress are general or residuary in character, whereas when it legislates for that part of the country which has been erected into states, its powers are specifically enumerated. Congress, therefore, may establish practically any form of government in the territories that it chooses. It may, if it wishes, set up therein a military government or it may establish civil government with such limitations and exceptions as it may wish. In the latter case it may allow the inhabitants a legislative assembly for purposes of local legislation, or Congress may legislate directly for them itself. And in case it permits the inhabitants to have a legislative assembly of their own and to enact their own laws, Congress may veto or modify any law passed by such legislature. Indeed, says the Supreme Court, Congress may make valid an invalid act passed by a territorial legislature as well as declare invalid a valid act passed by it.
Does the Constitution Extend to the Territories?—A subject much discussed, especially at the time of the acquisition of Porto Rico and the Philippines, was whether such provisions of the Constitution as were applicable extended of their own force to new territories immediately upon the establishment of American sovereignty over them; that is, whether the Constitution "follows the flag" or whether its provisions apply only when extended by act of Congress. One party asserted that such provisions go wherever the sovereignty of the United States goes, that the government cannot be carried to any new territory unless accompanied by the Constitution from which it derives its authority, and that Congress has no power to withhold such provisions as are applicable. The other party maintained that the Constitution was established only for the people of the United States; that whenever new territories have been acquired, Congress has extended such provisions as it saw fit; and that Congress is unlimited as to its power in dealing with the inhabitants of such territories. The Supreme Court in the famous Insular Cases, decided in 1900 and 1901, upheld the latter view and ruled that for all practical purposes the territories of the United States are completely subject to the legislative authority of Congress, and that it is not even restricted by those provisions of the Constitution which were adopted for the protection of individual liberty. In practice Congress has always extended to the domestic territories such provisions of the Constitution as were applicable, thus putting the inhabitants upon the same footing as those of the states so far as the enjoyment of civil rights are concerned, but not as to political rights. So far as the insular territories are concerned, it has also extended most of the provisions relating to civil rights, though in the case of the Philippines a few safeguards such as the right of indictment by grand jury, trial by jury, and the right to bear arms have been withheld.
The Origin of the Territorial System.—Before the Constitution was adopted, Congress had acquired by cession from certain of the original states a vast domain of territory north of the Ohio River, and later it acquired a considerable domain lying south of the Ohio (p. 159). One of the conditions upon which the territory north of the Ohio was ceded, was that Congress should form the territory into distinct republican states which should be admitted to the Union on an equal footing with the old states. It was felt, however, that the territory in question should be put through a sort of preparatory stage before being erected into states; that is, it should be held in a state of dependency until the population was sufficiently numerous to maintain a state government and the inhabitants had acquired sufficient political capacity to manage their own public affairs.