representative, others only partially so, until, at the
present time, the people of the District live under a
local government totally devoid of local
representation, in the elective sense, administered
solely by officers appointed by the President,
Congress, in which the District has no
representative in effect, acting as the local
legislature.

 In some adjudged cases the power to locally
 govern at discretion has been declared to arise as
 an incident of the right to acquire territory. In others
 it has been rested upon the clause of 3, article IV,
 of the Constitution, which vests Congress with the
 power to dispose of and make all needful rules and
 regulations respecting the territory or other
 property of the United States. But this divergence,
 if not conflict of opinion, does not imply that the
 authority of Congress to govern the territories is
 outside of the Constitution, since in either case the
 right is founded on the Constitution, although
 referred to different provisions of that instrument.

 While, therefore, there is no express or implied
 limitation on Congress in exercising its power to
 create local governments for any and all of the
 territories, by which that body is restrained from the
 widest latitude of discretion, it does not follow that
 there may not be inherent, although unexpressed,
 principles which are the basis of all free government
 which cannot be with impunity transcended. But
 this does not suggest that every express limitation
 of the Constitution which is applicable has not
 force, but only signifies that even in cases where
 there is no direct command of the Constitution
 which applies, there may nevertheless be
 restrictions of so fundamental a nature that they
 cannot be transgressed, although not expressed in
 so many words in the Constitution.

 Sixth. As Congress in governing the territories
is subject to the Constitution, it results that all the
limitations of the Constitution which are applicable
to Congress in exercising this authority necessarily
limit its power on this subject. It follows, also, that
every provision of the Constitution which is
applicable to the territories is also controlling
therein. To justify a departure from this elementary
principle by a criticism of the opinion of Mr. Chief
Justice Taney in Scott v. Sandford, 19 How. 393,
15 L. ed. 691, appears to me to be unwarranted.
Whatever may be the view entertained of the
correctness of the opinion of the court in that case,
in so far as it interpreted a particular provision of the


Constitution concerning slavery, and decided that
as so construed it was in force in the territories, this
in no way affects the principle which that decision
announced, that the applicable provisions of the
Constitution were operative. That doctrine was
concurred in by the dissenting judges, as the
following excerpts demonstrate. Thus Mr. Justice
McLean, in the course of his dissenting opinion,
said (19 How. 542,15 L. ed. 757):

 "In organizing the government of a territory,
 Congress is limited to means appropriate to the
 attainment of the constitutional object. No powers
 can be exercised which are prohibited by the
 Constitution, or which are contrary to its spirit."

 Mr. Justice Curtis, also, in the dissent
 expressed by him, said (p. 614, L. ed. p.787):

 "If, then, this clause does contain a power to
 legislate respecting the territory, what are the limits
 of that power?

 To this I answer that, in common with all the
 other legislative powers of Congress, it finds limits
 in the express prohibitions on Congress not to do
 certain things; that, in the exercise of the legislative
 power, Congress cannot pass an ex post facto law
 or bill of attainder; and so in respect to each of the
 other prohibitions contained in the Constitution."

 Seventh. In the case of the territories, as in
 every other instance, when a provision of the
 Constitution is invoked, the question which arises
 is, not whether the Constitution is operative, for
 that is self-evident, but whether the provision relied
 on is applicable.

 Eighth. As Congress derives its authority to
levy local taxes for local purposes within the
territories, not from the general grant of power to
tax as expressed in the Constitution, it follows that
its right to locally tax is not to be measured by the
provision empowering Congress "to lay and collect
taxes, duties, imposts, and excises," and is not
restrained by the requirement of uniformity
throughout the United States. But the power just
referred to, as well as the qualification of uniformity,
restrains Congress from imposing an impost duty
on goods coming into the United States from a
territory which has been incorporated into and
forms a part of the United States. This results
because the clause of the Constitution in question
does not confer upon Congress power to impose