This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
Though declared to be a political question, the necessity of such a power is argued at length by these justices.
And, looked at from another point of view, the effect of the principle asserted is equally antagonistic, not only to the express provisions, but to the spirit of the Constitution in other respects. Thus, if it be true that the treaty-making power has the authority which is asserted, what becomes of that branch of Congress which is peculiarly the representative of the people of the United States, and what is left of the functions of that body under the Constitu-tion '. For, although the House of Representatives might be unwilling to agree to the incorporation of alien races, it would be impotent to prevent its accomplishment, and the express provisions conferring upon Congress the power to regulate commerce, the right to raise revenue, - bills for which, by the Constitution, must originate in the House of Representatives, - and the authority to prescribe uniform naturalization laws, would be in effect set at naught by the treaty-making power. And the consequent result - incorporation - would be beyond all future control of or remedy by the American people, since, at once and without hope of redress or power of change, incorporation by the treaty would have been brought about. The inconsistency of the position is at once manifest. The basis of the argument is that the treaty must be considered to have incorporated, because acquisition presupposes the exercise of judgment as to fitness for immediate incorporation. But the deduction drawn is, although the judgment exorcised is against immediate incorporation and this result is plainly expressed, the conditions are void because no judgment against incorporation can be called into play."
As is later indicated, however, where the treaty of annexation provides for incorporation, the consent of Congress to such incorporation may be implied from legislation that recognizes this status as having been obtained. But where a treaty of cession does not expressly provide for incorporation, and still more, where it expressly provides against it. a more formal congressional action would seem to be necessary.
The opinion then proceeds to maintain that at the time the Constitution was adopted, the term "United States" designated a definite territory, namely, the thirteen original States and the areas which they had ceded,or had agreed to cede, to the General Government, and that the new government with prescribed powers was established for the benefit of the citizens of this national aggregate of State and Territories. "Thus it was, at the adoption of the Constitution, the United States, as a geographical unit, and as a governmental conception both in the international and domestic sense, consisted not only of States, but also of Territories, all the native white inhabitants being endowed with citizenship, protected by pledges of a common union, and, except as to political advantages, all enjoying equal rights and freedom, and. safeguarded by substantial guarantees, all being under the obligation to contribute their proportional share for the liquidation of the debts and future expenses of the General Government."
In short, then, according to this doctrine, the Constitution, from the beginning, extended ex proprio vigore, over the States and the extra-State regions then subject to the sovereignty of the United States. In all that concerned the form of government to be established over them, the inhabitants of these territorial, extra-State districts, were subject to the discretionary control of Congress, but in all else, in the private rights of person and property, and the protection of all the limitations upon the federal power, express or implied, they were on a plane of perfect equality with the citizens of the States.
With reference, however, to territories acquired since 1789 the doctrine of the opinion is, as has been said, that they do not by annexation become ipso facto integral parts of the United States in this constitutional sense until Congress has incorporated them into the Union as such.
In support of this position the court cite legislative action to this effect with reference to territory annexed since 1787 up to the time of the treaty of 1898 with Spain. In each case, with the exception of this last treaty, the treaty of cession had provided that the territories ceded should be incorporated into the United States, or, as in the treaty of 1867 for the purchase of Alaska, that the civilized inhabitants should be "admitted to the enjoymerit of all the rights, advantages and immunities of citizens of the United States." 5
If, the opinion asks, the effect of annexation were immediately to incorporate the territory annexed into the United States, what was the need of these express treaty provisions?6
The opinion next goes on to show that the constitutional doubts expressed by Jefferson at the time of the acquisition of Louisiana were not as to its annexation, but as to its incorporation, as provided by the treaty, into the Union. By reference to various legislative and administrative acts, the opinion shows the territories subsequently annexed to have been either formally incorporated or by necessary implication recognized by Congress as incorporated into the United States. This being so, it is argued that the various earlier dicta of the Supreme Court relative to the constitutional limitations resting upon Congress when legislating for the Territories are to be interpreted in that light and do not cover the case of a Territory which has not been incorporated into the United States.
5 The treaty for the cession of Louisiana to the United States provided that: "The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all the rights, advantages, and immunities of the citizens of the United States." (8 U. S. Stat, at L. 202.)