State Acts Held Unconstitutional-U.S.
Government Printing Office
See: http://www.access.gpo.gov/congress/senate/constitution/con040.pdf
State ex rel. Bolens v. Frear, 148 Wis. 456 (1912)
"Unlike the federal constitution and the constitutions of most of the states, the constitution of this state creates and recognizes not three but four branches of government: legislative, executive, administrative, and judicial. Administration is logically and in most cases legally recognized as an exercise of the executive power."
[State ex rel. Bolens v. Frear, 148 Wis. 456 (1912)]
People v. Parks, 58 Cal. 624, 635 (1881)
"The Constitution is the voice of the people speaking in their sovereign capacity, and it must be heeded. When it speaks in plain language with reference to a particular matter, it must have effect as the paramount law of the land. ( Matter of N. Y. E. R. Co., 70 N. Y. 342; Warner v. Beers, 23 Wend. 166; People v. Albertson, 55 N. Y. 54.)"
[People v. Parks, 58 Cal. 624, 635 (1881)]
People ex rel. Sammons v. Snow, 340 Ill. 464, 469 (1930)
"The judge has no more right to disregard and violate the constitution than the criminal has to violate the law. It is the duty of courts to support and maintain the constitution, and if the judges, who have taken an oath to support the constitution, openly violate [**10] it, how can they expect the courts to retain the confidence and respect of the people? A criminal may have forfeited his right to liberty, but neither courts nor any other power have the right to deprive him of it except in accordance with the law of the land."
[People ex rel. Sammons v. Snow, 340 Ill. 464, 469 (1930)]
Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895)
Since the opinion in Marbury v. Madison, 1 Cranch, 137, 177, was delivered, it has not been doubted that it is within judicial competency, by express provisions of the Constitution or by necessary inference and implication, to determine whether a given law of the United States is or is not made in pursuance of the Constitution, and to hold it valid or void accordingly. "If," said Chief Justice Marshall, "both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." And the Chief Justice added that the doctrine "that courts must close their eyes on the Constitution, and see only the law," "would subvert the very foundation of all written constitutions." Necessarily the power to declare a law unconstitutional is always exercised with reluctance; but the duty to do so, in a proper case, cannot be declined, and must be discharged in accordance with the deliberate judgment of the tribunal in which the validity of the enactment is directly drawn in question.
Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235 (U.S., 1929)
“It is not open to question that one who has acquired rights of property necessarily based upon a statute may not attack that statute as unconstitutional, for he cannot both assail it and rely upon it in the same proceeding. *528 Hurley v. Commission of Fisheries, 257 U.S. 223, 225, 42 S.Ct. 83, 66 L.Ed. 206.”
[Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235 (U.S., 1929)]
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936)
The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
[. . .]
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.FN7 Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 8 S.Ct. 631, 31 L.Ed. 527; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411, 412, 37 S.Ct. 609, 61 L.Ed. 1229; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. 469, 43 S.Ct. 178, 67 L.Ed. 351.
__________________
FOOTNOTES:
FN7 Compare Electric Co. v. Dow, 166 U.S. 489, 17 S.Ct. 645, 41 L.Ed. 1088; Pierce v. Somerset Ry., 171 U.S. 641, 648, 19 S.Ct. 64, 43 L.Ed. 316; Leonard v. Vicksburg, etc., R. Co., 198 U.S. 416, 422, 25 S.Ct. 750, 49 L.Ed. 1108.
[Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936)]
Marbury V. Madison, 5 U.S. 137 (1803)
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
*178 *So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, 178*178 and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
Perkins v. Elg. 99 F.2d. 408, 410 (1938)
When the Constitution was adopted the people of the United States were the citizens of the several States for whom and for whose posterity the government was established.
[Perkins v. Elg. 99 F.2d. 408, 410 (1938)]
Dodge v. Woolsey, 18 How. 331, 350, 351 (1856)
The States, or rather the people forming it, though sovereign as to the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are not independent of each other in respect to the powers ceded in the Constitution.
[Dodge v. Woolsey, 18 How. 331, 350, 351 (1856)]
Opinions
of the Attorney General, 31 O.P. 213
". . .There may possibly arise cases of plain and obvious conflict between the provisions of the Constitution and the provisions of a statute. In such cases, there is no room for construction, no ground for argument: and in all such cases, not only the judiciary Department, but every Department, and indeed every private man who is required to act upon the subject matter, must determine for himself what the law of the land, as applicable to the case in hand, really is. He must obey the law, the whole law; and if the conflict between the Constitution and the act of Congress -- the higher and the lower law -- be plain and unquestionable, he must, of necessity, disregard the one or the other. He cannot disregard the Constitution, for that is the supreme law; and therefore he must obey the Constitution, even though, in doing so, he must disregard a statute. The Constitution is the highest and strongest law of all, and therefore the lower and weaker law must yield to it in every case, before every tribunal, high or low, judicial or executive. . . ."
[Opinions of the Attorney General, 31 O.P. 213]
Senate Report 711, 75th
Congress, 1st Session, 1937, on Page 8
"...Those of us who hold office in this Government, however humble or exalted it may be, are creatures of the Constitution. To it we owe all the power and authority we possess. Outside of it we have none. We are bound by it in every official act."
"We know that this instrument, without which we would not be able to call ourselves presidents, judges, or legislators, was carefully planned and deliberately framed to establish three coordinate branches of government, every one of them to be independent of the others. For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities. . ."
[Senate Report 711, 75th Congress, 1st Session, 1937, on Page 8]
Congressional
Record, Senate, Sept 20, 2004
"...This Constitution is the foundation upon which each stone of our government is laid. It is our bedrock. It touches everyday of your lives...This Constitution touches everyday, every hour, every minute of your lives. Practically everything you do is made possible by or is guaranteed or is protected by this Constitution. It is the prism through which each act of our Government should be examined and judged..."
[Congressional Record, Senate, Sept 20, 2004]
President Clinton's
Proclamation of Citizenship Day, Sept. 20, 1994
Federal Register, April
30, 1992: President Clinton Proclamation about Loyalty Day
"...By honoring their vow to uphold our Constitution, elected officials, law enforcement officers, judges, and other public employees demonstrate their appreciation for the blessings of liberty and their determination to help preserve them..."
[Federal Register, April 30, 1992: President Clinton Proclamation about Loyalty Day]
Federal Register,
May 6, 1998, Comments of President Clinton About the Constitution and
the Purpose of Law
"...Our laws ensure that the rights set forth in the Constitution and its Amendments are protected in our everyday lives:..."
[Federal Register, May 6, 1998, Comments of President Clinton About the Constitution and the Purpose of Law]
Federal Register,
May 3, 2000, Comments of President Clinton About the Constitution and
the Purpose of Law
"The freedom of America's citizens is sustained by American law. In crafting the Constitution and the Bill of Rights, our Nation's founders wisely understood that liberty and law are equally important to ensuring human rights and preserving human dignity. Law without freedom becomes tyranny; freedom without law becomes chaos."
Federal Register,
June 14, 2000, Comments of President Clinton About the Constitution
and the Purpose of Law
"...we recognize the sanctity of the American ideals on which our Republic was founded: liberty, justice, equality, and the guarantee of individual rights..."
[Federal Register, June 14, 2000, Comments of President Clinton About the Constitution and the Purpose of Law]
Miller v U.S., 230 F.2d. 486, 489 (1956):
"The claim and exercise of a Constitutional right cannot be converted into a crime."
[Miller v U.S., 230 F.2d. 486, 489 (1956)]
Cooper v. Aaron, 358 U.S. 1 (1958)
“. . .Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution."
“No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”
[Cooper v. Aaron, 358 U.S. 1 (1958)]
Butz v. Economou, 438 U.S. 478 (1978)
“. . . a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers...”
[. . .]
“. . . the official would not be excused from liability if he failed to observe statutory or constitutional limitations on his powers or if his conduct was a manifestly erroneous application of the statute...”
[. . .]
“. . . federal officials. . .even when acting pursuant to congressional authorization, are subject to the restraints imposed by the Federal Constitution. . .”
[Butz v. Economou, 438 U.S. 478 (1978)]
Owen v. City of Independence, 445 U.S. 622 (1980)
“. . . Whatever other concerns should shape a particular official’s actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. . .”
[Owen v. City of Independence, 445 U.S. 622 (1980)]
Frost v. Railroad Commission of the State of California, 271 U.S. 583, 594 (1926)
“. . . But the power of the state [i.e. any government] in that respect is not [271 U.S. 583, 594] unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence. . .”
[Frost v. Railroad Commission of the State of California, 271 U.S. 583, 594 (1926)]
Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1, 231 U.S. 250, 58 L.Ed. 206, 34 S.Ct. 92
"A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority."
[Ellingham v. Dye, 178 Ind. 336; 99 NE 1, 231 U.S. 250, 58 L.Ed. 206, 34 S.Ct. 92; Sage v. New York, 154 N.Y. 61; 47 NE 1096]
State v. Sutton, 63 Minn. 147, 695 WX N.W., 262, 30 L.R.A. 630, 56 Am. St. 459
"But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intend that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers."
[State v. Sutton, 63 Minn. 147, 695 WX N.W., 262, 30 L.R.A. 630, 56 Am. St. 459; Lindberg v. Johnson, 93 Minn. 267, 101, N.W. 74; Cook vs Iverson, 122, N.M. 251]
Webster's New World Dictionary, 2nd College Ed., 1970. (Emphasis added.)
INTENT. One's mental attitude, including purpose, will determination, etc., at the time of doing an act.
[Webster's New World Dictionary, 2nd College Ed., 1970. (Emphasis added.)]
Black's Law Dictionary, 4th edition (1968), West Publishing Co., p. 1251.
ORGANIC LAW. The fundamental law, or constitution of a system of laws or principles which defines and establishes the organization of its government. St. Louis v. Dorr, 145 Mo. 466, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575.
[Black's Law Dictionary, 4th edition (1968), West Publishing Co., p. 1251]
VanHorne's Lessee v. Dorrance, 2 U.S. 304, 2 Dall. 304 (1795):
What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void."
McCullough v. Com. of Virginia, 172 U.S. 102 (1898):
“It is elementary law that every statute is to be read in the light of the constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach.”
Suth. Stat. Const., p. 44, note 1.
"The authority of the organic law is universally acknowledged; it speaks the sovereign will of the people; its injunction regarding the process of legislation is as authoritative as are those touching the substance of it."
[Suth. Stat. Const., p. 44, note 1]
Ware v. Hylton, 3 Dall. 199.
"The constitution of a state is the fundamental law of the State."
[Ware v. Hylton, 3 Dall. 199]
State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689.
"Constitutional provisions and amendments to the Constitution relate to the fundamental law and certain fixed principles upon which governments are founded. Constitutions are commonly called the organic law of a State."
[State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689]
Du Pont v. Du Pont, 85 A 724. (Emphasis and Insertion added.)
"The basic purpose of a written constitution has a two-fold aspect, first securing [not granting] to the people of certain unchangeable rights and remedies, and second, the curtailment of unrestricted governmental activity within certain defined spheres."
[Du Pont v. Du Pont, 85 A 724]
Chambers v. Florida, 309 U.S. 227 (1938)
"No higher duty, or more solemn responsibility, rest upon this Court than that of translating into living law and maintaining this Constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution-of whatever race, creed of persuasion."
[Chambers v. Florida, 309 U.S. 227 (1938)]
Johnson v. Duke, 180 Md. 434
"The Constitution of the State is a higher authority than any act or law of any officer or body assuming to act under it. And in the case of conflict, the Constitution must govern, and the act or law in conflict with it must be held to have no legal validity."
[Johnson v. Duke, 180 Md. 434]
People v. Parks, 58 Cal. 624
"The Constitution is the voice of the people speaking in their sovereign capacity, and it must be heeded: when the Constitution speaks with reference to a certain matter, it must be given effect as the paramount law of the land."
[People v. Parks, 58 Cal. 624]
People ex rel. Sammons v. Snow, 72 A.L.R. 798
"A judge has no more right to disregard the Constitution than a criminal has to violate the law."
[People ex rel. Sammons v. Snow, 72 A.L.R. 798]
Weinberger v. Miller, 87 Ohio St. 12
"The Constitution is the Supreme law, written by the supreme power of the state, the people themselves."
[Weinberger v. Miller, 87 Ohio St. 12]
United States v. Delaware & Hudson Co., 213 U.S. 366; 29 S.Ct. 527 (1909)
"It is elementary when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. [Cite omitted.] And unless this rule is considered as meaning that our duty is to first decide that a statute is unconstitutional, and then proceed to hold that such ruling was unnecessary because the statute is susceptible of a meaning which causes it not to be repugnant to the Constitution, the rule plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."
[United States v. Delaware & Hudson Co., 213 U.S. 366; 29 S.Ct. 527 (1909)]
Hagans v. Lavine, 415 U.S. 528 (1974)
The Court of Appeals ruled that petitioners had not tendered a substantial constitutional claim and ordered dismissal of the entire action for want of subject matter jurisdiction. The principle applied by the Court of Appeals - that a "substantial" question was necessary to support jurisdiction - was unexceptionable under prior cases. Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, [415 U.S. 528, 537] 193 U.S. 561, 579 (1904); "wholly insubstantial," Bailey v. Patterson, 369 U.S. 31, 33 (1962); "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); "plainly unsubstantial," Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); or "no longer open to discussion," McGilvra v. Ross, 215 U.S. 70, 80 (1909). One of the principal decisions on the subject, Ex parte Poresky, 290 U.S. 30, 31 -32 (1933), held, first, that "[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented"; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that "[t]he question may be plainly unsubstantial, either because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 ; McGilvra v. Ross, 215 U.S. 70, 80 ."
Only recently this Court again reviewed this general question where it arose in the context of convening a three-judge court under 28 U.S.C. 2281:
"`Constitutional insubstantiality' for this purpose has been equated with such concepts as `essentially fictitious,' Bailey v. Patterson, 369 U.S., at 33 ; `wholly insubstantial,' ibid.; `obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); and `obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32 (1933). The limiting words `wholly' and `obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally [415 U.S. 528, 538] insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. 2281. A claim is insubstantial only if `"its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy."' Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 -106 (1933); McGilvra v. Ross, 215 U.S. 70, 80 (1909)." Goosby v. Osser, 409 U.S. 512, 518 (1973).The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U.S. 678, 683 (1946), and characterized as "more ancient than analytically sound," Rosado v. Wyman, supra, at 404. But it remains the federal rule and needs no re-examination here, for we are convinced that within accepted doctrine petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy.Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U.S. 22, 25 (1913). Here, 1343 (3) and 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The District Court's jurisdiction, a matter for threshold determination, turned [415 U.S. 528, 539] on whether the question was too insubstantial for consideration.
In Dandridge v. Williams, 397 U.S. 471 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. We held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, we sustained the regulation. But Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still "be rationally based and free from invidious discrimination." Id., at 487. See Jefferson v. Hackney, 406 U.S. 535, 546 (1972); Carter v. Stanton, 405 U.S. 669, 671 (1972); cf. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).
Judged by this standard, we cannot say that the equal protection issue tendered by the complaint was either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court. We are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other. 6 Nor is it immediately obvious to us from the [415 U.S. 528, 540] face of the complaint that recouping emergency rent payments from future welfare disbursements, which petitioners argue deprived needy children because of parental [415 U.S. 528, 541] default, was so patently rational as to require no meaningful consideration.
Construction of Constitutions
"In ascertaining the meaning of the terms of the Constitution, recurrence may be had to the principles of the common law." United States v. Brody, 3 Cr. Law Mag. 69.
"The terms of a constitutional amendment are not controlling in giving construction to the provisions of the Constitution as they originally stood." Norton v. Bradham (1884), 21 S. C. 375.
"We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted." Mattox v. United States, 156 U. S. 237, 243.
"In this, as in other respects, it (a constitutional provision) must be interpreted in the light of the common law, the principles of history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 12 Wall. 162. . . .The language of the Constitution, as had been well said, could not be understood without reference to the common law. 1 Kent Comm. 336. . . . " Kepner v. United States, 195 U. S. 100, 126.
"(I)n the construction of these instruments the following rules are actually observed:
1. The practical construction must be uniform. A constitution does not mean one thing at one time and another at some subsequent time.
2. The object of construction is to give effect to the intent of the people in establishing the Constitution; it is the intent of the law giver that is to be enforced. But the intent is to be found in the instrument itself. . . .
Cooley, The General Principles of Constitutional Law, 3rd. ed. (1898), pp. 386-387. (Little & Brown Co.).
"The term 'citizen' was used in the Constitution as a word, the meaning of which was already established and well understood. And the Constitution itself contains a direct recognition of the subsisting common-law principle, in the section which defines the qualifications of the President: `No person except a natural born Citizen, or a Citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of the President,' etc . . . . The only standard which existed of a natural born Citizen was the rule of the common law, and no different standard has been adopted since." Lynch v. Clarke (1844), 1 Sandf. Ch. (N.Y.) 656.
ESTABLISH. 1. To set and fix firmly or unalterably; to settle permanently. "I will establish my covenant with him for an everlasting covenant." Gen. xvii. 2. To found permanently; to erect and fix or settle; as to establish a colony or empire. 3. To enact or decree by authority and for permanence. . . 4. To settle or fix; to confirm. . . 5. To make firm; to confirm; to ratify what has been previously set or made. "Do we then make void the law through faith? God forbid: yea, we establish the law." Rom. iii.
American Dictionary of the English Language (1828), Noah Webster. (Reprinted by the Foundation for American Christian Education, 1967)ESTABLISH. This word occurs frequently in the Constitution of the United States, and it is there used in different meanings: (1) to settle firmly, to fix unalterably; as to establish Justice, which is the avowed object of the Constitution. . . .To settle or fix firmly; place on a permanent footing; found; create; put beyond doubt or dispute; prove; convince. . . . Black's Law Dictionary, supra, p. 642.
ESTABLISH. 1. to make stable; make firm; settle [to establish a habit] 2. to order, ordain, or enact (a law, statute, etc. . . ) 3. to set up (a government, nation, business, etc. . . ). Webster's New World Dictionary of the American Language, 2nd College Edition, World Publishing Co., 1970.
"The term 'Citizen of the United States' must be understood to mean those who were citizens of the State as such after the Union had commenced and the several States had assumed their sovereignty. Before that period there were no citizens of the United States." Inhabitants of Manchester v. Inhabitants of Boston, 16 Mass. 230, 235.
"The perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, of of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people . . . . Not only, therefore, can their be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." Texas v. White (1868), 7 Wall. (U.S.) 700.
Guam v. Guerrero 290 F.3d. 1210, *1214 (C.A.9 (Guam),2002)
Congress has the power to legislate directly for Guam or to establish a government for Guam subject to congressional control, and except as Congress may determine, Guam has no inherent right to govern itself. Id. With the exception of certain "fundamental rights," federal constitutional rights do not automatically apply to unincorporated territories. Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Dorr v. United States, 195 U.S. 138, 147, 24 S.Ct. 808, 49 L.Ed. 128 (1904). An act of Congress is required to extend constitutional rights to the inhabitants of unincorporated territories. Pugh v. United States, 212 F.2d 761, 762-63 (9th Cir.1954).
Later, in 1968, Congress enacted 48 U.S.C. § 1421b(u), known as the Mink Amendment, which extended certain constitutional rights to Guam "to the extent that they [had] not been previously extended" and provided that those rights "shall have the same force and effect [in Guam] as in the United States or in any State of the United States."
[Guam v. Guerrero 290 F.3d 1210, *1214 (C.A.9 (Guam),2002)]