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Downes v. Bidwell

Downes v. Bidwell
Argued January 8–11, 1901
Decided May 27, 1901
Full case name Samuel Downes v. George R. Bidwell
Citations 182 U.S. 244 (more)
The Constitution does not necessarily apply to territories. Instead, the Congress has jurisdiction to create law within territories in certain circumstances, particularly dealing with revenue, that would not be allowed by the Constitution for proper states within the union.
Court membership

Downes v. Bidwell, 182 U.S. 244 (1901), was a case in which the United States Supreme Court decided whether United States territories were subject to the provisions and protections of the United States Constitution. This question is sometimes stated as "does the Constitution follow the flag?". The resulting decision narrowly held that the U.S. Constitution did not necessarily apply to territories. Instead, the United States Congress had jurisdiction to create law within territories in certain circumstances, particularly dealing with revenue, that would not be allowed by the U.S. Constitution for proper states within the union. It has become known as one of the "Insular Cases".


  • Background 1
  • Decision 2
  • Consequences 3
  • References 4


The case specifically concerned a merchant, Samuel Downes, who owned S. B. Downes & Company. His company had imported customs inspector for the port of New York, on the grounds that, as a United States territory, such duties were under the jurisdiction of Article I, Section 8 of the U.S. Constitution, which provides that "all duties, imposts, and excises shall be uniform throughout the United States." Since the duty on oranges did not exist for other parts of the United States, he argued that it should not exist for Puerto Rico.


The U.S. Supreme Court decided, in a five-to-four decision, that newly annexed territories were not properly part of the United States for purposes of the U.S. Constitution in the matter of revenues, administrative matter, and the like. However, the court was careful to note that the Constitutional guarantees of a citizen's rights of liberty and property were applicable to all: such guarantees "cannot be under any circumstances transcended...." said Justice Edward Douglass White in his concurring opinion. Territories were due the full protections of the Constitution only when the US Congress had incorporated them as an "integral part" of the United States.

The dissent written by Justice John Marshall Harlan held that the US Congress was always bound to enact laws within the jurisdiction of the Constitution. In it, he said, "This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place." He held that the Congress had no existence, and therefore had no authority, outside of the US Constitution.

"The idea prevails with some, indeed it has expression in arguments at the bar, that we have in this country substantially two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to... I take leave to say that, if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system will result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism... It will be an evil day for American Liberty if the theory of a government outside the Supreme Law of the Land finds lodgment in our Constitutional Jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution." --Honorable Supreme Court Justice John Harlan in the 1901 case of Downes v. Bidwell.


The idea of territorial incorporation is generally agreed to have arisen from Justice White's concurring decision noted above. Note that incorporation in this case does not refer to the legal process whereby a company takes on certain of the characteristics of a person (see incorporation). The concept of territorial incorporation is that the United States can be proprietor of a territory without having actually incorporated the territory into the United States. These unincorporated territories are not due the full benefits of the US Constitution, as noted from Justice White's decision above.

This idea has been used in court cases ever since in affirming that the citizens of certain territories can be subject to laws and regulations that are not constitutionally applicable to other citizens of the United States. Many citizens of territories that have been designated unincorporated have seen the principle of territorial incorporation as a form of oppression (see, for example, Román, Ediberto, "The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism", Florida State University Law Review, 1998).


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