Page:Harvard Law Review Volume 12.djvu/399

379 THE STATUS OF OUR NEW TERRITORIES. 379 of it; it is not because it is the function of the judicial depart- ment to sit in judgment upon the action of the legislative depart- ment, but because the judicial department has held that it cannot do otherwise than disregard an act of the legislative department which is in violation of the Constitution, without itself incurring the guilt of violating the Constitution, and also (it may be added) because the legislative department and the people have acquiesced in that view. While, therefore, the power of the legislative and executive de- partments is co-extensive with the sovereignty, the judicial depart- ment can exercise only such jurisdiction as has been delegated to it; and hence its jurisdiction would still be limited to the original thirteen States, had not the Constitution provided for the admission of new States. There is, therefore, no room for any question as to where either the legislative, the executive, or the judicial power in our new ter- ritories resides; for the legislative power clearly resides in the Congress of the United States, and the executive power in the President of the United States; and the power of establishing the judicial department also resides in Congress, though Congress cannot itself exercise the power belonging to that department. In the legislative and executive departments, therefore, is vested all the sovereign power in our new territories that has been delegated by the people; and the real question is in what character, and sub- ject to what limitations, if any, do they hold this power. Does Con- gress (for example) hold the legislative power there as it does in the States, i. e., subject to all the limitations and restrictions imposed by the Constitution; or does it hold that power in the new terri- tories without any other limitation than that imposed by the 13th Amendment, namely, that it shall not establish slavery in any of them; or does the truth lie somewhere between these two extremes? And this brings us to the question whether the limita- tions and restrictions imposed upon Congress by the Constitution are operative outside the States. These limitations and restrictions are found chiefly in the 8th and 9th sections of Art. i, and in the first ten Amendments. The 8th Section of Art. i owes its existence entirely to the fact that the Constitution of the United States, while it is a true consti- tution, and creates a true sovereign, is yet a federal constitution. By it the people of each State vested a portion of the sovereignty