Hawaii v. Mankichi.
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Disabilities Convention
Logic of pre-war system: each person has only one citizenship, and if they have a problem outside of their own country then their only remedy is to ask their government to assert their right of “diplomatic protection”.
I.e. a political, not a legal right, let alone directly enforcable.
The logic of one-person:one-passport was to avoid conflicts.
But, the system of political enforcement to prevent abuse, instead of legal enforcement, led to conflicts.
Sovereign as proprietor, state as a property relationship.
Evolution of state theory:
1) Extended family (Primitive / Ancient societies)
2) Status and Property (Absolutism, Feudalism – subjects) (The State as property, the sovereign as owner)
3) to Individualism and Contract (Social contract liberalism – early modernity früh Neuzeit – citizens)
4) toward social rights and civil society (Social democracy, global constitutionalism – late modernity – civil society)
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Downes v. Bidwell. 182 U. S., 244. (1900)
Issue (Question Presented)
Does the tax on goods sold from New York to Porto Rico violate the U.S. Constitution?
“whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories.”
Rules:
Constitutional text: “no tax or duty shall be laid on articles exported from any State.”
Interpretation: applies “only to articles imported from foreign countries into the United States”
“export” should be given a correlative meaning and applied only to goods exported to a foreign country. Muller v. Baldwin, L. R. 9 Q. B. 457.
Power to tax is concurrent.
Federal tax and finance power is broad reaching, plenary.
Review: Fiscal policy: Taxing (broad means) Spending (limited ends) Monetary Policy (subject to fundamental rights) Banking (implied power)
Could call this a financial constitution — U.S. does not!
Presumption of constitutionality.
Application
Does export” means foreign countries? “The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, [founders] in the practical construction put upon it by Congress and in the decisions of this court. [Not Wechselwirkung but looks like it!]
Puerto Rico is not a foreign country.
Thus, the goods are not imports, nor exports.
“If they are neither exports nor imports, they are still liable to be taxed by Congress under the ample and comprehensive authority conferred by the Constitution “to lay and collect taxes, duties, imposts and excises.” Art. 1, sec. 8.”
[Notice how the cases quote the relevant parts of the constitution and they admit: there is not much text to interpret!]
Conclusion:
The tax is constitutional.
Hawaii v. Mankichi. 190 U.S., 197. (1903)
Facts: U.S. annexes Hawaii. Congress passes law holding Hawaiian law valid unless contrary to U.S. constitution.
Criminal defendant convicted by a jury trial: non-unanimous verdict.
“The municipal legislation of the Hawaiian Islands, not contrary to the Constitution of the United States, shall remain in force until the Congress of the United States shall otherwise determine.”
Issue:
Whether denial of right to unanimous jury verdict is a violation of the U.S. constitutions’ fundamental rights?
Rules:
Fundamental constitutional rights apply outside the territories of the several states
Unanimous jury conviction “merely procedural”
(substantive, i.e. materielles Recht versus procedural, i.e. Verfahrensrecht)
Vocabulary:
“Material” in English means “Rechtlich relevant, d.h. zutreffend”.
“Material” in English does Not mean “materielles Recht”.
“Prozessuales Recht” = trial procedure.
“Absolutes Recht” doesn’t exist in the German sense in English. If I say
“An absolute right” that means “a right good against all the world”. As opposed to a “relative right” which might be conditioned by other rights (including the rights of other people).
Vested rights in rem were seen historically as absolute, whereas in personam rights were seen historically as relative.
That distinction is less true today than it was historically.
Rationale:
Congressional intent
“What would this lead to”
Gonzales v. Williams.
Facts: Puerto Rican, goes to New York. Immigration authorities detain them.
Issue: Can Puerto Rican’s be detained at the border as aliens?
Rule: citizenship versus alien.
Not all non-aliens are citizens!
Vocabulary
What does alien mean? “Unlinked” – a-lien.
Compare:
Volkzugehörigkeit, Staatsangehörigkeit, Staatsbürgerschaft
Nationality versus citizenship
Citizen; Subject.
Rationale: flexible plenary foreign policy powers.
Conclusion:
U.S. Cannot detain Puerto Rican’s at the border because, regardless whether the Puerto Rican is a citizen (undecided: parsimony) the Puerto Rican is not an alien.