The following is an excerpt from an article by Mr. Stephen A. Douglas. The main thrust of the article has to do with the unfortunate topic of slavery. However, Mr. Douglas gives an excellent brief history on the colonies, and early Condfederated and Constitutional American governments.
(The majority of the main article can be read by clicking on the link in the headline).
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...If judicial authority were deemed necessary to give force to principles so eminently just in themselves, and which form the basis of our entire political system, such authority may be found in the opinion of the Supreme Court of the United States in the Dred Scott case. In that case the Court say:
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“This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United states, while it remains a Territory, and until it shall be admitted as one of the States of the Union.
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"There is certainly no power given by the Constitution to the Federal Government to establish or maintain Colonies, bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way except by the admission of new States.
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"The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a Colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion.”
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Having determined the question that the power to acquire territory for the purpose of enlarging our territorial limits and increasing the number of States is included within the power to admit new States and conferred by the same clause of the Constitution, the Court proceed to say that “the power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired”. And again, referring to a former decision of the same Court in respect to the power of Congress to institute governments for the Territories, the Court say:
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“The power stands firmly on the latter alternative put by the Court that is, as the inevitable consequence of the right to acquire territory”.The power to acquire territory, as well as the right, in the language of Mr. Madison, to institute temporary governments for the new States arising therein (or Territorial governments, as they are now called), having been traced to that provision of the Constitution which provides for the admission of new States, the Court proceed to consider the nature and extent of the power of Congress over the people of the Territories:“All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the general Government may exercise over the person or property of a citizen in a Territory thus acquired, the Court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed.
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“Taking this rule to guide us, it may be safely assumed that citizens of the United States, who emigrate to a Territory belonging to the people of the United States, can not be ruled as mere colonists, dependent upon the will of the general Government, and to be governed by any laws it may think proper to impose. . . . The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved.”
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Hence, inasmuch as the Constitution has conferred on the Federal Government no right to interfere with the property, domestic relations, police regulations, or internal polity of the people of the Territories, it necessarily follows, under the authority of the Court, that Congress can rightfully exercise no such power over the people of the Territories. For this reason alone, the Supreme Court were authorized and compelled to pronounce the eighth section of the Act approved March 6, 1820 (commonly called the Missouri Compromise), inoperative and void there being no power delegated to Congress in the Constitution authorizing Congress to prohibit slavery in the Territories.
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In the course of the discussion of this question the Court gave an elaborate exposition of the structure, principles, and powers of the Federal Government; showing that it possesses no powers except those which are delegated, enumerated, and defined in the Constitution; and that all other powers are either prohibited altogether or are reserved to the States, or to the people. In order to show that the prohibited, as well as the delegated powers are enumerated and defined in the Constitution, the Court enumerated certain powers which can not be exercised either by Congress or by the Territorial Legislatures, or by any other authority whatever, for the simple reason that they are forbidden by the Constitution.
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Some persons who have not examined critically the opinion of the Court in this respect have been induced to believe that the slavery question was included in this class of prohibited powers, and that the Court had decided in the Dred Scott case that the Territorial Legislature could not legislate in respect to slave property the same as all other property in the Territories. A few extracts from the opinion of the Court will correct this error, and show clearly the class of powers to which the Court referred, as being forbidden alike to the Federal Government, to the States, and to the Territories. The Court say:
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“A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
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“Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. . . . So too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner in a time of peace; nor in time of var but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted, nor take private property for public use without just compensation.
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“The powers over persons and property, of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Governments, as well as that covered by States.
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“It is a total absence of power, every where within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the general Government might attempt, under the plea of implied or incidental powers. And if Congress itself can not do this if it is beyond the powers conferred on the Federal Government it will be admitted, we presume, that it could not authorize a Territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution.”
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Nothing can be more certain than that the Court were here speaking only of forbidden powers, which were denied alike to Congress, to the State Legislatures, and to the Territorial Legislatures, and that the prohibition extends every where within the dominion of the United States, applicable equally to States and Territories, as well as to the United States....
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