Four justices (Chief Justice Fuller, and Justices Harlan, Brewer and Peckham) dissented from the judgment rendered in Downes v. Bidwell. According to their view there is no constitutional distinction to be drawn between Territories incorporated in the United States and Territories unincorporated and merely appurtenant to the United States. States and Territories, they declare, are the only political units known to American Constitutional Law, and when by a treaty of cession and actual occupation, lands and their inhabitants have come under the sovereignty of the United States such, lands are necessarily a part of the United States, and no approving act of Congress is needed or is efficient to increase the constitutional privileges to which they are entitled and to make effective the legislative limitations upon the powers of Congress.

After calling attention to the essential character of the General Government as one of constitutionally limited powers, the opinion declares: "The powers delegated by the people to their agents are not enlarged by the expansion of the domain within which they are exercised. "When the restriction on the exercise of a particular power by a particular agent is ascertained, that is an end of the question. To hold otherwise is to overthrow the basis of our constitutional law and moreover, in effect, to reassert the proposition that the States, and not the people, created the government."

With reference to the competence of the treaty-making power to "incorporate" territory in the United States, the dissenting justices urge that the right of annexation being admitted and the Constitution not providing for, or recognizing as possible, territory appurtenant to but not incorporated into the United States, it follows that when territory is annexed by treaty, such territory becomes an integral part of the United States any provisions in the treaty to the contrary notwithstanding. Upon this point, having referred to the clause of the treaty of 1898 with Spain to the effect that "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress," the opinion reads: "This was nothing more than a declaration of the accepted principles of international law applicable to the status of the Spanish subjects and of the native inhabitants. It did not assume that Congress could deprive the inhabitants of ceded territory of rights to which they might be entitled. The grant by Spain could not enlarge the powers of Congress, nor did it purport to secure from the United States a guaranty of civil or .political privileges. In-deed, a treaty which undertook to take away what the Constitu-tion secured, or to enlarge the federal jurisdiction, would be simply void."

In the separate opinion which he prepared, Justice Harlan was especially emphatic in his repudiation both of the doctrine as-red by Justice Brown that the Constitution was created "by the people of the United States, as a union of States, to be governed solely by representatives of the States," and of the theory of the other four justices as to the status of "unincorporated" Territories.10