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The Foundations of the Modern Philippine State
Imperial Rule and the American Constitutional Tradition in

the Philippine Islands, 1898–1935
The US occupation of the Philippine Islands in 1898 began a foun-

dational period of the modern Philippine state. With the adoption of
the 1935 Philippine Constitution, the legal conventions for ultimate
independence were in place. In this time, American officials and their
Filipino elite collaborators established a representative, progressive,
yet limited colonial government that would modernize the Philippine
Islands through colonial democracy and developmental capitalism.
Examining constitutional discourse in American and Philippine
government records, academic literature, newspaper and personal
accounts, The Foundations of the Modern Philippine State concludes
that the promise of America’s liberal empire was negated by the imper-
ative of insulating American authority from Filipino political demands.
Premised on Filipino incapacity, the colonial constitution weakened the
safeguards that shielded liberty from power and unleashed liberalism’s
latent tyrannical potential in the name of civilization. This forged a
constitutional despotism that haunts the Islands to this day.
Leia Castañeda Anastacio is an S.J.D. graduate of Harvard Law School

and a Research Fellow with its East Asian Legal Studies Program. Plac-
ing first in the 1993 Philippine Bar Examinations, she was awarded
Harvard Law School’s Yong Kim ’95 Memorial Prize in 2008 and the
American Society of Legal History’s William Nelson Cromwell Foun-
dation Dissertation Prize in 2010.
Cambridge Historical Studies in American Law and Society
Recognizing legal history’s growing importance and influence, the goal of this series
is to chart legal history’s continuing development by publishing innovative scholar-
ship across the discipline’s broadening range of perspectives and subjects. It encourages
empirically creative works that take legal history into unexplored subject areas, or that
fundamentally revise our thinking about familiar topics; it also encourages method-
ologically innovative works that bring new disciplinary perspectives and techniques to
the historical analysis of legal subjects.
Series Editor
Christopher L. Tomlins, University of California, Berkeley
Previously published in the series:

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The Foundations of the Modern
Philippine State
Imperial Rule and the American Constitutional
Tradition in the Philippine Islands, 1898–1935
LEIA CASTAÑEDA ANASTACIO

East Asian Legal Studies, Harvard Law School
One Liberty Plaza, 20th Floor, New York ny 10006, usa
Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107024670

C Leia Castañeda Anastacio 2016
This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2016
Printed in the United States of America by Sheridan Books, Inc.
A catalog record for this publication is available from the British Library.
isbn 978-1-107-02467-0 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such Web sites is, or will remain,
accurate or appropriate.
To Monchie, Victor, and Timmy, Mommy and Daddy —
for their love, faith, and support,
and
To my formidable Filipina role models,
My grandmother Salud Santos Tesoro and
Her good friend Justice Cecilia Muñoz Palma —
for their courage and caring,
drive and devotion,
femininity and fortitude.
Contents
Acknowledgements page xi
Introduction 1
1 Republican Means, Imperial Ends: American Empire and the
Rule of Law 17
2 American Theory, Spanish Structure, and Ilustrado Capacity:
Inventing the Filipino People, Constructing the American
Colonial State 39
3 Foreign in a Domestic Sense: Organic Sovereignty,
Unincorporated Territories, and the Insular Doctrine 67
4 Sovereign but not Popular: Colonial Leviathan, Inherent
Power, and Plenary Authority 98
5 Progressive Interventions, Parchment Barriers: Civilizing
Mission, Colonial Development, and Constitutional
Limitations 123
6 Popular but not Sovereign: Colonial Democracy and the Rise
of the Philippine Assembly 139
7 American Vessels, Filipino Spirit: Filipinizing the
Government of the Philippine Islands 160
8 Filipinizing the Public: The Business of Government and the
Government in Business 178
9 Progressivism, Populism, and the Public Interest: Restoring
the Taft Era and the Cabinet Crisis of 1923 194
ix
x Contents
10 Colonial Conflict, Constitutional Categories: Constitutional

Imperialism and the Board of Control Cases 220
11 From “Is” to “Ought”: Constitutionalizing Colonial Legacies 241
Conclusion 259
Notes 267
Index 319
Acknowledgements
A flash of insight sparked this decade-long endeavor. And it came in

a mandatory “Introduction to American Law” course that I wanted to
drop. Since much of Philippine law is American in provenance, I felt I
knew American law – until Professor Abram Chayes asked our Master
of Laws (LL.M.) class for the rationale underlying bicameralism in the
US Congress. Instantly, my mind supplied the Philippine Legislature’s
justification of providing legislation a national perspective through the
Senate and a local one through the House. Hearing about the Connecticut
compromise for the first time, I wondered, “What else am I assuming
is identical that actually isn’t?” That epiphany launched an intellectual
odyssey that led me to the Philippine constitutional order’s roots deep in
its colonial past and across the Pacific to its American colonial origins – a
quest that accompanied my own journey from New England to the Deep
South.
As the wife of a busy cardiologist and mother of two energetic boys,
I might not have completed this project but for the generosity of so
many. I am grateful beyond words to Professors Christine A. Desan
and William P. Alford, my lead supervisors and mentors in American
Legal History and Comparative Law, respectively, who combined a light
touch with keen critical vision to help me capture a phenomenon as
complex as colonial constitutional development and whose support and
encouragement never wavered despite my own flagging confidence. I am
also indebted to Professor Alfred W. McCoy, my informal and subse-
quently formal mentor in Philippine History, for spirited debates and
wise counsel in matters professional and personal, and to Professor
xi
xii Acknowledgements
Frank I. Michelman, for strengthening my grasp of American Consti-

tutional Law and liberal theory. Very special thanks to Professor Mor-
ton J. Horwitz for guiding my descent from the “heaven of legal con-
cepts”; to Professor Richard F. Bensel for offering to “look over your
shoulder from a distance” through the dissertation-writing and revision
process; to my editor Professor Christopher L. Tomlins for his advice,
patience, and understanding as I wrestled with my manuscript; and to
Professors Patricio Abinales, John Ohnesorge, Christopher Capozzola,
Mitra Sharafi, Drs. Jane Fair Bestor and Mike Cullinane, and Atty.
Jacinto Jimenez, for sharing important sources and valuable advice.
Finally, many thanks to Professor Henry J. Steiner, my LL.M. super-
visor, for his continued scholarly interest in my work and friendship over
the years, and Professor Jere Daniell, for introducing me to American
History and spotting the potential in my ramblings when he said over
conversations in his office “there’s a long-term project for you.”
Professors Alford and Desan and Harvard Law School’s East Asian
Legal Studies Program provided indispensable logistical and financial
assistance by engaging Christopher Pearson through Janet Katz of Har-
vard Law School’s Langdell Library to help me investigate the papers
of W. Cameron Forbes at Harvard University’s Houghton Library. Like-
wise, I am grateful to my brother Arjay Castañeda and Chat Ojano and
Bernadette Pagsisihan for research assistance in Manila. Many thanks to
the following institutions for allowing access to their archives, collections,
and resources: Houghton Library, the University of Michigan’s Bentley
Library, the Library of Congress, the University of North Alabama’s
Collier Library, the Filipiniana Section and the American Historical Col-
lection of Ateneo de Manila University’s Rizal Library, the Ateneo Law
Library, the National Library’s Filipiniana Section, the Jose P. Laurel
Memorial Foundation, the University of the Philippines, the University of
North Carolina at Chapel Hill Libraries, Lyceum University, the Lopez
Museum, the Philippine Supreme Court, among others.
I greatly appreciate the sympathy and flexibility of Harvard Law
School’s Graduate Program, especially Jeanne Tai and Nancy Pinn. Affec-
tionate thanks to East Asian Legal Studies (EALS), especially Emma John-
son, Melissa Smith, and Juliet Bowler, for giving me a home away from
home in the EALS offices. And my sincerest gratitude to Abdus Salam
Mazumder and the staffs of Aptara and Cambridge University Press for
their extraordinary forbearance, especially in accommodating numer-
ous but crucial last-minute changes, and their exemplary commitment
to excellence.
Acknowledgements xiii
Finally, my heartfelt thanks to my family and friends for their love,

help, and understanding, especially Victor Luchangco, Maribel Tesoro,
Kristin Martin Wray, Troy Medina, Rovelyn Crowder, Pam Martin,
Megan Fitzgerald, Judd Roy, Tonette Mendoza, Mickey Colayco; my
parents Rey and Lulu Castañeda and brothers Ricci and Xandro; and my
husband Ramon Anastacio and sons Victor and Timmy.
By way of clarification, I use the term “imperialism” broadly to encom-
pass both formal and informal projections of a country’s power and
influence outside its territory, whether through force or diplomacy, and
“colonialism” to refer to both the policy and practice by which one
country acquires full or partial political control over another, occupies
its territory, governs its inhabitants, and directs its external and internal
affairs. Spellings of terms reflect twentieth-century usage, and all trans-
lations from Tagalog and Spanish primary source material to English
are mine, as are all mistakes, whether in translation or in this text as a
whole.
Introduction
At age eight, I overheard, but pretended not to hear, our church organist
disclose to my mother one Sunday morning that she had been receiving
death threats. Stunned, I could not help but ask my mother why anyone
would want to kill such a sweet old lady. It turned out that our frail
organist was a formidable Filipina named Cecilia Muñoz Palma. The first
Filipina to top the Philippine bar examinations, this Yale LL.M. gradu-
ate was also the first of her countrywomen to be appointed prosecutor,
Court of First Instance and district judge, and Justice of the Philippine
Supreme Court. Most pertinently, Justice Palma was one of only two
Philippine Supreme Court justices who dissented from majority decisions
legitimizing President Ferdinand E. Marcos’s martial law regime. Grow-
ing up a “martial law baby” in the 1970s, I had heard countless accounts
of torture and “salvagings,” or summary executions, alongside anecdotes
of Marcos’s cronies shooting people on a whim. Knowing only rigged
elections and orchestrated political rallies attuned me to the dichotomy
and contradiction between the form and practice, the rhetoric and reality,
the structure and substance of Philippine democracy and constitutional
government.
Many of us who thronged to Epifanio de los Santos Avenue (EDSA) for
the first People Power revolt in 1986 naively yet fervently believed – or at
least hoped – that the solution would be as simple as getting rid of Marcos.
After all, Filipinos generally regarded their constitutional democracy, like
their Catholicism, as a benevolent colonial inheritance and assumed that
this “gift of the American conqueror”1 had functioned well before Mar-
cos. But the procession of new and not-so-new players indulging in old
1
2 Introduction
excesses, precipitating familiar crises, and setting off four People Power
revolts in the twenty years since EDSA, dashed prospects that real change
would result from mere changes in personnel. In truth, what US President
George W. Bush extolled in 2003 as the “first democratic nation in Asia”
had slid back into constitutional dictatorship not once, but twice, within
its first thirty years as a self-governing nation – initially under Common-
wealth President Manuel L. Quezon in the late 1930s and subsequently
under Marcos in the late 1960s. Repeated attempts to constitutionally
sanction authoritarian responses to various crises have fed a widely held
perception of “system failure.” This spotty track record explains why
President Bush’s words before the Philippine Congress citing the Philip-
pines as a model for transforming Iraq into a vibrant democracy struck
Filipinos and close observers of the Philippines as ironic.
Bush’s analogy between Iraq and the Philippines is particularly apt.
Like the Iraq War, the 1898 Spanish-American War was waged as a
humanitarian war of liberation against a tyrannical regime by a Republi-
can president known for his personal piety. In both cases, American and
local military and civil authorities undertook reconstruction and state-
building while suppressing outbreaks of rebellion.2 Central both to this
work and to Bush’s comparison is the program devised by the United
States to establish in the Philippine Islands a political democracy and a
market economy as an expression of benign imperialism. Derived from
what comparativist William P. Alford describes as a “somewhat idealized
sense of the American experience,”3 the ostensible goal was to establish
respect for “the rule of law,” organize political parties, subordinate mili-
tary to civilian authority, foster civil society and an independent media.4
While typically traced to the work of agencies like USAID in the 1960s,
these now standard features of the law and development template were
implemented in the Islands a half-century earlier, albeit then conceived
as a benevolent civilizing mission designed to recreate the Philippines in
America’s image. Helping propagate these models were technical experts
in fields like finance, currency regulation, economic management, and
public health, who first cut their teeth in the Philippine colony and later
worked for international governmental and non-governmental organiza-
tions, such as the World Bank and the Ford Foundation.5 As elements of
the Philippine colonial program have resurfaced in postwar reconstruc-
tion, decolonization, law and development, and democracy promotion
projects directed by the United States and the international community,
studying the Philippine colonial experience as an early extended experi-
ment of this process is warranted.6
Introduction 3
Widely seen to have systematically failed in the Philippines, this pro-

gram continues to be disseminated nonetheless. In part through its mod-
els, goals, mechanisms, strategies, the American experience of empire has,
for better or worse, come to shape the destinies of countries that were
subjected to formal American rule and those that came under the reach
of US political and economic influence following World War II, as well as
the United States itself. Indeed, despite problems encountered worldwide
and over the years, the use of such political and economic models has been
as widespread and persistent as faith in their promise has been strong. Its
repeated malfunctioning in the Philippines has often been ascribed, not
to the model, but to Filipinos.
When Justice Palma’s separate opinion in the Martial Law cases framed
President Marcos’s martial law proclamation as a justiciable rather than
a political question and that it did not automatically suspend the privilege
of the writ of habeas corpus, she acknowledged that her conclusion “may
not be supported by existing jurisprudence, or may even be contrary to
multiple authorities cited,” but were rather “spontaneous reactions of
my conscience.”7 For there was ample constitutional and jurisprudential
support to authorize Marcos’s assumption of emergency powers and to
insulate it from judicial scrutiny. The 1935 Philippine Constitution had
created a strong chief executive, which Americans experienced in Philip-
pine affairs like General Douglas MacArthur attributed to “the pattern
of Oriental psychology to respect and follow aggressive, resolute, and
dynamic leadership.”8 Consistent with their Oriental character, “the Fili-
pino masses,” Justice George Arthur Malcolm surmised after retiring
from the Philippine Supreme Court, “react more favorably to one-man
government than to more dispersed direction.” Consequently, “the wide
array of powers lodged by the Constitution in the Filipino President –
not to mention the many which are extra-constitutionally exercised by
red-blooded occupants of the office – conforms to tradition, experience,
and preference.” Beyond its presidential provisions, the 1935 Constitu-
tion as a whole “was drafted by Filipinos for Filipinos” and consequently
“did not blindly adhere to precedents inapplicable to local conditions,”
but rather “conformed to Filipino traditions and Filipino appreciation of
political principles.”9
By emphasizing the Philippine Constitution’s Filipino-ness, Malcolm
downplays how much the Commonwealth and Philippine governments
reproduced the colonial Government of the Philippine Islands. For far
from simply expressing the Filipinos’ Oriental nature, the hegemonic
Filipino president inhabited the mold cast by the American Governor-
4 Introduction
General, an officer who made the sovereignty of the US government

tangible and effective through his constitutional autocracy. That colo-
nial political and legal system, in turn, resulted from the decision of the
administration of President William McKinley to use the ideas and insti-
tutions of American liberal constitutionalism and democracy in colonial
governance in order to reconcile American republic and empire. Mal-
colm’s hand-washing thus obscures the extent to which this so-called
Filipino constitutional tradition was itself shaped by concrete experience
in implementing and justifying American colonial rule within this frame-
work and the central role played by American colonial policymakers in
establishing these practices. Produced in the course of day-to-day inter-
actions between Filipinos and Americans in the Insular Government and
Philippine society – interactions that were themselves ordered by Amer-
ican constitutional rules – this tradition determined how these players,
each according to his designated role, learned to apply constitutional
principles to colonial practice and embodied their understandings of con-
cepts as molded by these processes. From this perspective, Philippine
constitutional autocracy is as much American as it is Filipino.
Philippine Law and History

This book’s legal focus departs from Philippine historical literature’s pre-
occupation with the agency of different actors shaping seminal national
events. Through historiographic styles spanning the positivist, material-
ist, and idealist since the field’s inception as an academic discipline in the
1910s, Filipino and foreign historians have apportioned varying degrees
of responsibility to individuals and groups, foreign and native, elites as
well as masses, for their role in historical developments. Partly to sup-
port American rule, early American Philippinists and their first Filipino
students drew on memoirs of colonial officials and celebrated American
colonialism’s civilizing benefits. Feeding the larger project of exception-
alism in American history,10 these accounts also countered nationalist
reconstructions by Filipino intellectual elites, like national hero Jose Rizal,
of an indigenous Philippine past that was civilized, not only in Western
terms, but in its own right, thereby making the case for independence
against Spain.11
In developing nationalist histories, post-independence Philippine his-
torians continued to highlight Filipino agency, but located it in the masses
instead of their elite leaders. Unmasking the self-interest that drove elite
collaboration with American rule, these “histories from below” cast a
Philippine Law and History 5
Filipino identity out of what Renato Constantino calls a “usable past”

in order to foster pride and political awareness among the masses and
empower them in their everyday struggles.12 Analyzing popular texts,
Reynaldo Ileto recovered the masses’ world view and ascribed popular
participation in the Revolution against Spain, not to clientelist loyal-
ties, but rather in a vision of society forged by their experience of the
Pasyon, or the narrative of the passion, death, and resurrection of Jesus
Christ.13
Rather than add to these compelling narratives, this book explores
a different vein of Philippine history – the institutional and ideological
framework that positioned actors, directed their choices, and determined
their strategies and justifications. For Marcos was enabled by an infras-
tructure – one that had been installed by organic acts that had governed
the Islands throughout American rule and was fundamentally preserved
by the 1935 Philippine Constitution. Marcos’s martial law powers, for
example, originated from a provision of the 1916 Philippine Autonomy
Act conferring the same exclusive powers on the Governor-General, sub-
ject to review only by the US president. This prerogative formed part of
a particular configuration of authority designed to ensure the sovereign’s
representative full control over a colonial government whose subjects
were nonetheless granted political representation.
This infrastructure’s blueprints were American liberal constitutional-
ism’s tenets and technology, which categorized spheres of life, defined
roles and relationships, and distributed power within the Philippine colo-
nial constitutional order. This discourse essentially furnished the equiv-
alent of Duncan Kennedy’s legally configured “background conditions,”
Douglass North’s “rules of the game,” or Michel Foucault’s invisible dis-
ciplinary grid that structured and governed human thought and activity
in the Philippine Islands.14 Albeit intangible, this constitutional design
is discernible from what legal historian Christine Desan describes as “a
concatenation of decisions, made, enforced, and contested about, who
should speak and with what authority.” It serves not only to locate
actors within this order, but also to shape both “their contributions to
its continuation” as well as their opportunities to challenge and change
it. Portraying American colonialism in the Islands as a project in consti-
tutional construction, this book grounds interactions between Americans
and Filipinos in a colonial constitutional dynamic, which, in Desan’s
words, “does not recede, evaporate, or fade to facilitate an exchange of
views more amorphously offered,” in attempting to grasp “how people
assuming very different roles and given dramatically divergent amounts
6 Introduction
of authority themselves extend, accept, or challenge the order in which

they find themselves.”15
The book’s legal emphasis expands recent reassessments of the Ameri-
can colonial legacy that responded to the nationalist critique by acknowl-
edging the lack of fit between what sociologist Julian Go terms “America’s
‘developmental benevolence’” and its devastating impact. While more
attentive to the interplay between the institutional and the personal, these
accounts nonetheless rely upon a functionalist understanding of law16 in
which political and economic interests figure centrally and enlist law as a
tool. Regarding invocations of ideas largely as pretext or rationalization,
these histories fail to reckon with the power of legal ideas to shape a
world view that prods and directs human action and thereby influences
historical and legal developments. Subsequent ideological histories have
yet to analyze legal materials as rigorously as they have other texts.17
This book seeks to fill these lacunae in the literature.
If spotlighting law is relatively new to the historiography of the Philip-
pines under US rule, then equally novel is the centrality that I ascribe to
history in Philippine legal development. For if historians of the Islands’
American colonial period have not seriously engaged with law, then legal
analysts have traditionally not taken history seriously enough. Perhaps
until the 2011 launch of the interdisciplinary Philippine Law and Society
Review,18 most legal articles were either chronological compilations of
legal sources charting the development of different areas of law19 or inter-
pretive or “normative” surveys designed to glean “correct” legal solu-
tions.20 These works treat history more as a backdrop that parallels, but
does not influence, legal change and deploy it as part of law’s problem-
solving technology.21 When engaging historical scholarship, Philippine
legal research has tended to view legal questions through the former’s
functionalist or conceptualist lenses. Employing modes of critical legal
analysis from American legal history to study Philippine law, this project
helps lay the foundation for a new Philippine legal historiography.
American Empire and the Rule of Law

The law creating the Philippine constitutional infrastructure was itself
shaped by colonialism’s imperatives. For the relationship between Amer-
ican liberal constitutionalism and her colonial policy and practices
reflected the McKinley administration’s attempts to harmonize the despo-
tism inherent in imperialism with the American tradition’s commitment
to consensual and constitutionally limited government. Deciding whether
American Empire and the Rule of Law 7
and how to keep the Philippine Islands and Puerto Rico – territories that
never would, or could, be fellow sister republics – sparked a national iden-
tity crisis whose ramifications were intensely debated in political, legal,
and popular forums. The dilemma was especially acute for the Philippine
Islands, which had redirected her independence struggle against Spain
toward the United States.
To ensure that America’s dreams of empire would not imperil her
democracy, McKinley’s “benevolent imperialism” attempted to tame
colonialism’s despotic potential through the spirit of the same popular
and constitutional mechanisms credited with curbing tyranny at home.
First, the Government of the Philippine Islands sought the consent of the
governed by granting insular inhabitants a measure of political represen-
tation. Second, the Insular Government’s power was not absolute, but
divided according to separation of powers theory and restrained by Bill
of Rights guarantees originating in the US Constitution. That this pro-
gram heeded aspirations that had fueled the Philippine Revolution and
found support among leading Filipinos substantiated its consistency with
American values despite denying independence.
This program grafted onto colonialism the American formulation
of the rule of law, which yoked self-government to self-restraint and
subjected power to popular and legal limits. To this construct, legal
scholar Paul Kahn ascribes a constitutive function for American self-
understanding, which was realized through legal processes. Lacking “a
common ethnic, racial, or religious heritage,” Kahn viewed American
identity as “peculiarly dependent on the idea of law,” with Americans
believing they “created themselves first through a violent, revolutionary
break with an inherited, unjust monarchic order and then through a
positive act of popular law making.”22 Forging a national identity that
nineteenth-century Americans deemed exceptional, this process stood to
create an exceptional imperial identity by extension.
Promising to chasten imperialism, the American rule of law would
nonetheless have to be adjusted to accommodate the backward condition
of Filipinos, even while engendering their capacity for sovereignty. Inte-
gral to adapting American liberal constitutionalism to Philippine colonial
governance were the mechanisms of a dominant legal ideology, which
legal scholars Morton J. Horwitz and Duncan Kennedy term “classi-
cal legal thought.”23 In nineteenth-century America, the law that con-
strained power worked through abstract, general categories and neutral,
formal processes that had characterized American liberalism since the
nation’s founding, but this time emulated scientific methodology. As legal
8 Introduction
historian William Wiecek explains, this paradigm was informed by a set of

beliefs shared by American political and legal elites about liberty, power,
human nature, rights, and republican government – that is, “the values
that define Americans as a people and their government as a republic.”24
This scheme located democracy’s greatest danger in legislative majorities
and charged the judiciary with confining their reach to areas designated
in constitutional jurisprudence as “public” and shielding areas of life cat-
egorized as “private.” The founding generation enabled such a strategy
when they severed the neutral, abstract, and universal categories of liberal
ideology and institutions from the organic social and political arrange-
ments that modulated their operation, masking what historian Gordon
S. Wood identifies as a gap between their democratic ideology and elitist
motives.25
Similarly, architects and executors of American colonial policy always
assumed that the popular prerogatives and universal rights guaranteed
to sovereign and formally equal American citizens, along with the insti-
tutions that made them effective, had to be modified in order to gov-
ern primitive Filipinos. To legitimately circumscribe Filipino rights and
deny their sovereignty entailed unearthing precisely the latent assump-
tions that its constitutional system’s neutral and universal nomenclature
suppressed – assumptions that nonetheless conditioned its workings. That
is, despite acknowledging that Filipinos possessed the capacities that lib-
eralism ascribes to all human beings, namely, equality, freedom, and
rationality, American colonial actors maintained that their “uncivilized,”
non-Western culture meant that Filipinos lacked what political scien-
tist Uday Singh Mehta calls the “thicker set of social credentials” that
qualified the proper exercise of these capacities and served as the crite-
ria for political participation.26 Indeed, while Filipinos desired indepen-
dence, Americans believed that their culture inadequately prepared them
to assume its responsibilities and rendered them incapable of sustaining
democracy on their own in the meantime.
Accordingly, constitutional jurisprudence carved out for the Islands a
space for colonial governance, as it had created differential domestic legal
regimes to accommodate within liberal theory illiberal practices toward
disadvantaged groups and areas.27 This project’s internal contradictions
thus generated further contradictions, as the Islands were designated an
“unincorporated territory” where the US Constitution’s force was moral
rather than legal. In possessions that were “foreign in a domestic sense”
with respect to the United States, the power of the Insular Government as
US agent was sovereign, but not popular, concentrated and unbounded,

rather than divided and limited; and colonial democracy was popular,
but not sovereign, and elitist rather than populist.
Indeed, colonial constitutionalism facilitated the expression of popu-
lar consent, while withholding sovereign control. For organic acts lodged
greater power in the institutional representatives of American sovereignty,
namely, the “magisterial” executive and judicial branches, even while
they devolved the “popular” legislative branch to Filipinos. Unmoor-
ing sovereignty from the people gave the colonial executive access to
sovereign prerogatives, such as police power, which could be wielded
unfettered by the federal arrangements that had qualified their func-
tioning in the mainland and divorced from the community of the gov-
erned whose consent was its foundation and source of legitimacy. At
the same time, it subjected Filipino representatives in the legislature to
systemic checks against popular majorities. With civilized capacity an
unarticulated prerequisite of meaningful democratic engagement, legiti-
mate popular consent was limited precisely to those elites who displayed
civilized credentials and were most inclined to cooperate with colonial
power.
Filipino backwardness also justified limitations on constitutional pro-
tections by tapping into what Mehta identifies as liberalism’s deep
reformist impulse, flowing from an Enlightenment’s view of the world
as capable of improvement through political effort.28 Refurbishing an
activist administrative apparatus that had been firmly controlled by colo-
nial executives under Spain, American colonial officials directed this impe-
tus toward modernizing Philippine culture. By introducing to the Islands
a political democracy and market economy subject to judicial oversight,
these progressive imperialists intended to replicate the material and ideo-
logical conditions that had given rise to and underlain the functioning
of the rule of law in the United States. In this way, Filipinos would earn
the proper credentials to participate in a modern liberal democracy and,
should they still desire it, become a full and permanent member of the
community of sovereign nations.
Filipino political leaders subsequently codified colonial constitutional
text and practice in the 1935 Philippine Constitution, the charter that
governed their Commonwealth and thereafter their independent repub-
lic. Perpetuating colonial contradictions, they reinforced the foundations
of an elite democracy, a constitutionally despotic president, and a struc-
turally and substantively unbridled institutional leviathan. In the end,
10 Introduction
what benevolent imperialism seemed generously to give to Filipinos, it just

as readily took away from them. Withholding liberalism’s entitlements
while upholding its commitment to universality, the colonial constitu-
tional order planted the seeds of dysfunction. For by allowing Filipinos
to enjoy the trappings of popular sovereignty while depriving them of
political control, by imposing constitutional limits on American colonial
government but curtailing their efficacy, liberal empire legitimated and
constitutionalized its version of the despotic. In this sense, it did not differ,
whether substantially or operationally, from contemporary imperial legal
projects that made little or no pretense of consulting colonized peoples.
Given the Philippines’ colonial legacy, Marcos and his martial law
regime now seem less of an anomaly and more of a direct descendant
of the Philippine colonial constitutional scheme. Just as Korematsu v.
United States produced a “loaded weapon” in the principle sanction-
ing racial discrimination as a justification for Japanese interment during
World War II, the Philippine Constitution’s potential for constitutional
dictatorship lay “ready for the hand of any authority that [could] bring
forward a plausible claim of an urgent need.”29 Yet while martial law
was far from the first and only instance of an authoritarian flareup in
Philippine history, both Americans and Filipinos in the insular service
attributed problems encountered to cultural rather than systemic factors.
On one end, Philippine Supreme Court Associate Justice and later Com-
missioner Charles Burke Elliott explained, “Not everything that grows
and prospers in the West, whether plants or governments, can be success-
fully transplanted to the Far East.” For while some Filipino “individuals
have been partially Americanized,” it is “very doubtful whether we have
materially changed the fundamental character of the Filipino people,”
who remain “Spanish in culture” and whose mental processes “are those
of Latins, not Anglo-Saxons.”30 Filipino protégés such as Maximo Kalaw,
on the other, ascribed the American program’s success primarily to the
resources that “America found there.”31
Neither set of colonial actors, however, doubted the inherent merits
of the American liberal constitutional project. Both sides implicitly sub-
scribed to a civilizational hierarchy that categorized America as civilized,
modern, and superior, and the Philippine Islands as backward, medieval,
and inferior and disagreed only over the degree of Philippine backward-
ness. Within the exclusive club of sovereign civilized nations in the nine-
teenth century, Americans regarded their liberal constitutional democracy
as the exemplar and their political experiment, an unequivocal success.
In turn, the notion that their form of government represented the pin-
nacle of civilization fed assumptions about its essential soundness. These
were views that Filipinos shared, having designed similar constitutional
programs for their own prospective republic. While deeming Filipinos
unready, American liberal colonialists felt uniquely suited to mentor
Filipinos in the system they had originated and congratulated themselves
for their exceptional generosity in assimilating their uncivilized wards into
their most civilized traditions when less enlightened imperialists might
have kept them at a greater distance. Indeed, they regarded as one of the
clearest examples of their benevolent intentions the decision to use their
own law to govern their Philippine colony rather than the native law
that their European imperial contemporaries often preferred. Americans
believed that by preserving what they understood to be native law, the
British in India and Thailand and the Dutch in Indonesia32 institutional-
ized extant social hierarchies and practices that were precisely in need of
reform.
Strikingly, academic opinion has not diverged too sharply from prac-
titioners’ convictions. While scholars of the Philippines’ American colo-
nial period have characterized the troubled, even damaging, reception of
American institutions in the Islands as “little more than an exercise in
‘myopic arrogance’ that ultimately did not meet its grand goals,”33 they
nonetheless have stopped short of questioning the fundamental sound-
ness of the exported system. More recently, historians Alfred W. McCoy,
Francisco Scarano, and Courtney Johnson note that parallel historio-
graphic developments complementing American history’s renewed inter-
est in American empire have34 ceased assessing the sincerity of benev-
olence. Instead, Julian Go describes its proponents as critiquing “how
‘benevolence’ itself was constituted as a regime of colonial power,”35 but
they have still to specify the ways in which liberal modes and goals were
at cross-purposes with colonial imperatives and evaluate doctrinal and
institutional consequences.
While scholars of the Philippines have yet to delineate, first, how
American liberal constitutionalism negotiated the imperial compromise,
and second, the impact of this settlement on Philippine colonial consti-
tutionalism, American historians and legal scholars have demonstrated
extensively that American liberal discourse is both well-acquainted with
contradictions and well-equipped to negotiate conceptual inconsistencies.
By explaining how this discourse reconciled republic and empire, democ-
racy and colonialism in the Philippine colonial setting, this book extends
12 Introduction
this liberal critique comparatively as well as temporally. In so doing,

it departs from the prevailing propensity in the popular and scholarly
literature on the Philippines to presume that the American liberal consti-
tutional export is fundamentally sound and to attribute difficulties in its
implementation abroad to individual or cultural shortcomings.
For although American scholars have critiqued the premises and work-
ings of their liberal legal regime, they have only begun to scrutinize
its impact on colonial governance. Denying the imperial character of
early twentieth-century American expansion, diplomatic historians did
not recognize the impact of American institutions on her imperial prac-
tices and vice versa. After America’s rise to post-Cold War hegemony,
however, American empire scholarship has tried to make empire more
visible in American history and culture by deploying frameworks and
insights developed in fields like postcolonial studies, gender studies, and
New Labor History to analyze how imperial contacts shaped Ameri-
can understandings of intimate categories like gender, race, and class.36
Yet few have engaged American empire’s legal dimensions. Joining the
work of scholars like Christina Duffy Burnett for Puerto Rico37 and Sally
Engle Merry for Hawaii,38 this book both legalizes American empire and
imperializes American legal history by connecting to the colonial set-
ting various historiographies examining American doctrines and devices
introduced to the Islands, among them those on territoriality, British
North American government forms, nineteenth-century economic regu-
lation, the rise of the regulatory state, and the changing architecture of
American legal thought in the twentieth century.39
Questioning the liberal legal model’s operation overseas is an endeavor
commonly associated with American legal scholars from the Law and
Society movement who took part in first-generation Law and Develop-
ment projects in the 1960s.40 Sensing that their work might have hurt
more than helped developing countries, they became profoundly disillu-
sioned with the enterprise and abandoned it to lawyers less conflicted over
the dubious promise of liberal legalism.41 Upon returning to American
academe, they originated Critical Legal Studies, calling into question
the universal applicability of American liberal legalism.42 What has not
been done, and what this book undertakes, is to extend this scrutiny
backward in time to what is arguably the earliest test of this model’s
universal applicability in an alien environment: the Philippine Islands in
the early twentieth century. Such critical reflection is both necessary and
timely, given the global spread of governing approaches first devised in
the Philippine colonial setting.
Chapters 13
Chapters
Divided into this introduction, eleven chapters, and a conclusion, this
book tells the story of American constitutional colonialism in the Philip-
pine Islands. Beginning with the formulation of benevolent imperialism in
1898, the text spans Philippine colonial state-building by the US military
from 1898 to 1900 to incorporate the imperial compromise; the civilian
administrations of the Taft era, from1900 to 1913; Filipino attempts at
transformation under Governors General Francis Burton Harrison and
Leonard Wood, from 1913 to 1928; and the codification of the colonial
legacy in the 1935 Philippine Constitution.
Chapter 1, “Republican Means, Imperial Ends: American Empire and
the Rule of Law,” traces benevolent imperialism’s emergence as rationale
and program for empire to ratification debates for the 1898 Treaty of
Paris ceding Spain’s insular possessions to the United States. It examines
Secretary of War Elihu Root’s colonial strategy for balancing American
control with consent and constitutionalism.
Chapter 2, “American Theory, Spanish Structure, and Ilustrado Capa-
city: Inventing the Filipino People, Constructing the American Colonial
State,” turns to the construction of the Government of the Philippine
Islands by US military and civilian authorities during the so-called Taft
era. As a conduit for American democratic and constitutional values, the
Insular Government revived a Spanish colonial administrative structure
that was dominated by the executive and relied for its operation on indige-
nous elites whose collaboration supplied the consent that would give
democratic legitimacy to the American colonial program. These adapta-
tions seriously compromised the project.
Chapter 3, “Foreign in a Domestic Sense: Organic Sovereignty, Unin-
corporated Territories, and the Insular Doctrine,” unearths American
empire’s legal foundations in debates over the Islands’ status. These led
the US Supreme Court to create a new category, the unincorporated ter-
ritory, to accommodate territories annexed but denied statehood. It also
reflects upon the efficacy of the rule of law in the Islands where the US
Constitution exerted only moral, rather than legal, force.
Chapter 4, “Sovereign but not Popular: Colonial Leviathan, Inherent
Power, and Plenary Authority,” locates the development of the Insular
Government’s institutional capacity and theory of power in its campaign
to win the Philippine-American War and eradicate epidemic disease. Elab-
orating on the Insular Doctrine, the Philippine and US Supreme Courts
found warrant for the Insular Government’s activities in the organic
14 Introduction
sovereignty that the United States exercised over unincorporated terri-

tories and delegated to its insular agent. Finding authority, courts condi-
tioned by the prevailing separate spheres approach toward interdepart-
mental relations deferred to the political branches’ exercise of their
assigned powers, thus enfeebling separation of powers as one of two
major constitutional restraints introduced to the Islands.
Primarily through the lens of the due process clause, Chapter 5, “Pro-
gressive Interventions, Parchment Barriers: Civilizing Mission, Colonial
Development, and Constitutional Limitations,” assesses the efficacy of
the Bill of Rights, the second major constitutional restraint on the Insu-
lar Government’s civilizing interventions. Extending US sovereignty but
operating in a democratic polity without being subject to the people, the
government developed rationales for engaging state power according to a
progressive understanding of the public good that neutralized substantive
constitutional protections.
Chapter 6, “Popular but not Sovereign: Colonial Democracy and the
Rise of the Philippine Assembly,” considers Filipino training in repre-
sentative democracy through the Islands’ first two legislative bodies, the
Philippine Commission from 1900 to 1907 and the all-Filipino Assembly
from 1907 to 1913. Maneuvering within a configuration structured by
separation of powers, Filipino leaders, notably Speaker Sergio Osmeña
and his Nacionalista Party, invoked the legislature’s historical association
with “the people” in the Anglo-American tradition to devise their long-
term strategy for challenging American executive hegemony through their
legislative role.
Speaker Osmeña’s tactics bear fruit in Chapter 7, “American Vessels,
Filipino Spirit: Filipinizing the Government of the Philippine Islands,” as
Democrats in control of Congress and the White House hasten the Filip-
inization of the Insular Government. Explicitly promising independence,
the 1916 Jones Law restructured the Insular Government along pres-
idential lines, completely separating the American-controlled executive
branch from an all-Filipino bicameral legislature. With the cooperation of
Governor-General Francis Burton Harrison, Nacionalista legislators
invaded the executive branch by creating hybrid executive-legislative
bodies, like the super-cabinet called the “Council of State,” that enabled
Filipino legislators to control government administration.
With Nacionalistas in charge of the Insular Government, Chapter
8, “Filipinizing the Public: The Business of Government and the Gov-
ernment in Business,” examines their successful redirection of the
Chapters 15
government’s agenda toward their vision of national development. Imbu-

ing “the public” with their Filipino identity, they nationalized the Philip-
pine economy, capitalizing an empire of public corporations with public
revenues to compete with foreign companies and managing them through
the Board of Control, a “super board of directors” composed of the
Governor-General and the Filipino speaker and Senate president. They
also passed protectionist legislation, which the Philippine Supreme Court
validated within the equal protection doctrine.
Chapter 9, “Progressivism, Populism, and the Public Interest: Restor-
ing the Taft Era and The Cabinet Crisis of 1923,” recounts Governor-
General Leonard Wood’s dogged efforts to enforce strict separation of
powers under the Jones Law and to restore Taft-era development policies
after Republicans recapture Congress and the White House at the end of
World War I. His actions precipitated the “Cabinet Crisis,” or the mass
resignation of his Filipino cabinet secretaries.
Notwithstanding the political rift, Governor-General Wood proceeded
to disengage government from business and triggered a constitutional
crisis, which is unpacked in Chapter 10, “Colonial Conflict, Constitu-
tional Categories: Constitutional Imperialism and the Board of Control
Cases.” When Senate President Manuel L. Quezon and Speaker Manuel
Roxas refused to cast their Board of Control votes to privatize govern-
ment companies, Wood abolished the body and was sustained by the
Philippine and US Supreme Courts. Restoring the executive supremacy
ordained by the organic acts, both High Courts nonetheless left intact
the government’s interventionist capacity and clearly vested this in the
Governor-General.
Chapter 11, “From ‘Is’ to ‘Ought’: Constitutionalizing Colonial
Legacies,” finds chastened Nacionalista leaders shifting their strategy
toward securing independence. Framers of the 1935 Constitutional Con-
vention basically retained the Insular Government’s design and powers,
but amplified them. Inspired by the New Deal, drafters created a for-
tified tropical version, gave their president full command over its vast
administrative machinery, and weakened the judiciary’s ability to scru-
tinize government action by constitutionalizing colonial-era exceptions
delimiting Bill of Rights protections. With unrivaled control over such
a leviathan, the Philippine presidency became the most coveted political
prize in the independent Republic.
The “Conclusion” briefly reiterates the book’s main themes and sum-
marizes their development by preceding chapters. It then reflects upon
16 Introduction
the legacy of the philosophy and practice of American liberal empire on

subsequent Philippine politics and international democracy and develop-
ment programs informed by the Philippine colonial template.
This book addresses concerns both historical and contemporary, gen-
eral and specialized. For those who portray American imperialism as
either entirely enlightened or positively hypocritical, this offers a nuanced
and ambivalent account – one that views American motivations as sin-
cere, but whose understanding was ultimately limited by the contradictory
assumptions of a paradigm that nonetheless aspired to be enlightened.
For those interested in the cross-national applications of American legal
models, I provide tepid support, cautioning against an overly literal and
functional translation of rules and advising sensitivity both to the contexts
in which legal regimes emerged and to which they will be transplanted.
For those who ponder the relative influence of legal ideas and governing
institutions, I suggest that ideas only have influence if they are embedded
in the practice of governing institutions and that governing institutions,
when they make effective their animating rationales. Finally, for those
who wonder if history unfolds as predestination, I say, like Keynes, that
is true only if you let it be so. Much as this work highlights the power
of institutional structures to channel behavior, it also demonstrates that
structures themselves can be altered, often most effectively within their
own terms and mechanisms, and with them, their intended outcomes.
1
Republican Means, Imperial Ends
American Empire and the Rule of Law
Speaking with the Christian Advocate’s James Rusling in 1903, President

William McKinley, a man known for his piety, recounted the divine prove-
nance of his administration’s “benevolent imperialism.” In a narrative
that is now a fixture of Philippine historical lore, McKinley claimed that
he “didn’t want the Philippines, and when they came to us, as a gift from
the gods, I did not know what to do with them.” Turning to God rather
than to Republicans and Democrats for “light and guidance,” McKinley
deemed it “too cowardly and dishonorable” to return the Islands to Spain;
but “bad business and discreditable” to turn them over to France and
Germany, America’s commercial rivals in Asia; yet unrealistic to “leave
them to themselves – they were unfit for self-government.” Consequently,
there was no choice “but to take them all, and to educate the Filipinos,
and uplift and civilize and Christianize them, and by God’s grace do the
very best we could by them, as our fellow-men for whom Christ also
died.”1
To scholars critical of American colonialism in the Philippines and
attuned to the disjoint between its lofty goals, self-centered policies,
and dysfunctional outcomes, McKinley’s anecdote comes freighted with
irony.2 Its baggage notwithstanding, this story is a valuable artifact that
encapsulates the justifications that validated American colonialism with
her republican polity, informed her colonial policy, and influenced the
shape of the Philippine colonial constitutional order. As an intellec-
tual relic from America’s imperial moment, McKinley’s account evokes
the conceptual cosmos within which such ideas were generated, given
meaning, and acquired authority. Resting on the shared belief that the
American nation’s commitment to popular sovereignty and constitutional
17
18 Republican Means, Imperial Ends
government both defined and distinguished her, this paradigm animated

benevolent imperialism’s claim that an empire dedicated to civilizing Fil-
ipinos through what was regarded as a uniquely American formulation of
the rule of law would be compatible with and as unique as the tradition
that it duplicated.
These historical perceptions have helped shape academic, official, and
popular notions of American exceptionalism more generally and, by
extension, an exceptional American empire. That American values pro-
duced a unique imperialism either for not being an empire at all, or for
being an empire, but one that was informal or liberal and benign,3 has
since been challenged by scholarship demonstrating that developments
once thought to be singularly and essentially American are iterations
of broader global trends and responded to imperatives in both periph-
ery and metropole.4 Without subscribing to exceptionalist representa-
tions, examining the faith of American colonial actors in their tradition’s
exceptionalism is crucial to grasping its symbolic significance and mate-
rial implications. Embodying the ideological universe inhabited by these
players, these ideas informed the design, conduct, and legitimation of the
American colonial project and the imprint it left on the Philippine Islands
and are indispensable to fully understanding America’s colonial saga in
the Pacific. Thus, this chapter unpacks the discourse by which imperialists
and anti-imperialists articulated competing visions of their shared world
of meanings as they attempted to either rationalize or reject the deci-
sion to acquire and govern the Philippine Islands in the late nineteenth
century. It then examines the groundwork laid by the McKinley admin-
istration to construct an ideologically compatible imperialism that facil-
itated some expression of Filipino consent while creating the capacity to
exercise it.
American Expansion: Destiny and Decision

The image of the Islands as a “gift from the gods” is telling. Implying a
lack of deliberation and effort, it suggested that Americans were fated to
get the Islands and thus bereft of self-serving motives. That Puerto Rico
and the Philippine Islands came as spoils of her easy victory over Spain
perhaps created the impression that the Islands were America’s reward for
intervening in the Cuban revolution. Along with protecting US business
interests from growing instability, the United States had launched the
Spanish-American War in response to widespread public clamor to put
an end to brutal Spanish repression of the Cuban people.
American Expansion: Destiny and Decision 19
In asserting that “no other course was possible than to destroy Spanish
sovereignty” and that this “course created our responsibility before the
world and with the unorganized population whom our intervention had
freed from Spain,” McKinley’s 1900 reelection campaign platform simi-
larly portrayed the acquisition of the Islands as inadvertent and inevitable.
To be sure, McKinley’s designs for the Islands were difficult to discern.
Aware of the divisiveness of the issue of imperialism for a democratic
polity, the politically astute former Civil War veteran, Ohio governor,
and member of Congress played his cards very close to his chest. Just
as he had gradually unfolded his administration’s decision to intervene
in Cuba “in a sequence of incremental escalation until Spain was forced
to choose between steps that promised either early independence for the
Cuban colony or American intervention to accomplish the same end,”
so, too, did he obscure his ultimate plans for the Philippines by follow-
ing “a series of steps during the course of which the Cabinet and peace
commissioners were led to the conclusion that the United States had no
alternative but to demand sovereignty over the islands.”5 Having care-
fully maneuvered to consolidate American control over the Islands until
American occupation and rule were a fait accomplit, this “marvelous
manager of men”6 maximized his leverage with Spain, with Filipinos
who had been revolting against Spain, and with the US Congress, which
had constitutional authority over the territories.
Destiny
Such portrayals fed into the growing sense among late nineteenth-century
Americans that their nation was destined for empire. Expansion, after
all, had been built into the nation’s design and was its practice. Indeed,
Americans of the founding generation regarded “the enlargement of the
orbit within which such systems are to evolve”7 as key to the success,
survival, and stability of what they regarded an unprecedented republi-
can experiment. Extending its geographical sphere would, in Alexander
Hamilton’s view, help safeguard their republic from reprising the fate of
its turbulent ancient predecessors, whose lives were as short as their deaths
were violent.8 James Madison believed that expansion would hinder fac-
tions from acting in unison against other citizens or the larger community
and thus offered the best means of controlling “the effects of unsteadiness
and injustice with which a factious spirit has tainted our public adminis-
tration.”9 Now viewed as imperial in character, subsequent continental
expansion into areas then deemed terra nullius preserved the American
republic’s enlarged orbit as her population grew and appeared to provide
the safety valve that Madison had envisioned. Reflecting on this process
a century later, historian William A. Williams argued that expansion
both forestalled any single faction from dominating the nation’s political
institutions and provided a larger field to exploit or develop,10 which
mitigated clashes over what Madison had identified as faction’s most
common and durable source – the “various and unequal distribution of
property.”11
Within an intellectual environment that had absorbed the insights of
Charles Darwin’s theories on evolution, America’s “irresistible tendency
to expansion” struck the dollar diplomat Charles Conant as dictated by
“a natural law of economic and race development.”12 “We must not
forget,” future Harvard University president Abbott Lawrence Lowell
reminded Atlantic Monthly readers in 1899, “that the Anglo-Saxon race
is expansive.”13 Surveying a century of Anglo-Saxon expansion in 1897,
Yale medievalist George Herbert Burns noted that more than one quarter
of the earth’s total land area had come under English and American
rule.14 Viewed through Social Darwinism’s fusion of the biological theory
of evolution with historical development, Anglo-Saxon dominion offered
proof that the race was the fittest.
Late nineteenth-century American expansion pointed overseas,
because space in the continent seemed to run out just as the Second
Industrial Revolution erupted. Summarizing the scholarly consensus on
the source of empire’s motivations, Walter LaFeber traces its impetus ulti-
mately to spectacular growth and the corresponding crises that it fueled.
The mainland’s inability to absorb the glut of products and capital gen-
erated by American companies “running hard” spawned wrenching eco-
nomic depression and labor riots, creating the need for external markets
to alleviate the congestion.15 Interpreting this history through an evo-
lutionary prism that translated the natural progression of the life cycle,
from birth to death, as universal stages of civilizational progress, public
intellectuals like Brooks Adams and Josiah Strong sensed that the United
States had reached her peak and was in danger of decline. Even before
the historian Frederick Jackson Turner’s famous frontier thesis had, in
Theodore Roosevelt’s words, “put into definite shape a good deal of
thought which has been floating around rather loosely,” many had tied
America’s growth to the availability of free land in her vast continental
frontier and, as a reverse corollary, traced her looming decline to the
closing of this frontier.16 Answering the oft-repeated question, “We here
have been getting along exceedingly well; why cannot we keep on as we
have been going,” Lowell replied: “An engine cannot keep on if there is
no more track.”17
Prior to the Spanish-American War, this metaphorical track had been
extended by the complementary overseas activities of American mer-
chants and missionaries, who ventured into Latin America and the Pacific,
seeking markets and concessions and spreading the Protestant values to
which Strong credited the stability of America’s Anglo-Saxon civilization.
Winning the war made it possible to extend this track more literally. As
the US Senate deliberated over the 1898 Treaty of Paris ceding Cuba,
Puerto Rico, and the Philippine Islands from Spain to the United States
and confronted the concrete prospect of an imperial America, the diverse
group of political, business, and intellectual leaders that comprised the
anti-imperialist coalition advocated rejection.
Decision
Massachusetts Senator Henry Cabot Lodge, McKinley’s majority floor
leader, had waxed enthusiastic during the ratification debates that Manila
would afford “inestimable advantages” in developing trade with China,
“the greatest of all markets.”18 Some anti-imperialists, however, balked
at empire’s costs and risks.19 While imperial expansion suited the north-
ern core economies of the imperialists, political scientist Richard Bensel
notes that this strategy held little appeal for the peripheral economies of
the South and Mountain West where anti-imperialists clustered, because
they produced raw materials that sought domestic and foreign industrial
markets instead of manufactured goods for colonies to absorb.20 Though
not categorically anti-imperialist and despite close ties to the McKin-
ley administration, the powerful Havemeyer Sugar Trust was wary of
competition that domestic sugar faced from sugar imported from these
new possessions and opposed including them within the American tar-
iff wall.21 Indeed, rather than dispose of mainland surpluses as hoped,
expansion threatened to spur the influx, not only of insular products, but
also their cheaper labor, which labor leaders like Samuel Gompers feared
would unfairly compete with American workers.22
Beyond economic threats, industrialist Andrew Carnegie worried that
prospective gains were outweighed by “the unceasing alarms of war which
work most injury, causing capital to shrink from enterprise, frightening
the whole financial, commercial, and manufacturing world, and throw-
ing upon the workingmen at last the chief burden of want and suffering,
through loss of employment.”23 For to venture out into the world was to
enter an imperial arena, where Great Britain, France, Germany, and Italy
had carved up the continents of America, Asia, and especially Africa, and
the United States had begun negotiations to acquire the Danish Virgin
Islands before it intervened in Cuba.24 Prior to war, overseas Ameri-
cans had become embroiled in rivalries with their European counterparts
and needed increasingly aggressive political and military support from
their home government. In his proposals to modernize the American
Navy, Alfred Thayer Mahan anticipated that the United States would
need strategic naval bases, one of which was Manila, from which to pro-
tect her carrying trade and would likely need to control the hinterland
in order to hold these facilities.25 Vermont Republican Senator George
Franklin Edmunds foresaw flowing to such bases “a constant current of
supply and reinforcement of material and men”26 to govern a distant
archipelago in revolt and defend US interests from competition.
Thus, empire risked entangling America with European politics,
against which erstwhile Democratic presidential candidate William Jen-
nings Bryan reminded his audiences, “Washington and Jefferson with
equal emphasis [had] warned their countrymen.”27 Indeed, Britain enthu-
siastically supported America’s imperial aspirations. Toward the end of
the nineteenth century, the former antagonists came to prefer maintaining
open access to markets, especially China’s, rather than allotting territorial
spheres of influence among different world powers. But the British had
stakes specific to the Philippine Islands. With investments totaling $100
million by 1896, the British controlled 40 percent of the Islands’ foreign
trade and owned 80 percent of its foreign enterprises, including its first
railroad company and two out of three of its leading banks. Ruel Pagun-
san’s study of British consular dispatches during the revolutionary period
reveal that the British had considered purchasing the Islands from Spain,
but could not afford to maintain and administer another possession with-
out detriment to her prized colonies or the metropole. But rather than lose
the Islands to other interested European powers, notably the Germans,
whose ships plied Manila Bay as the US and Spanish navies did battle, the
British preferred that the Americans keep them and thus encouraged their
imperial ambitions.28 As Germany’s imperial interests fell more in step
with those of Russia, Great Britain sought to forge an alliance with the
United States, smoothing over differences that had stemmed from their
earlier conflicts over Brazil and Venezuela.29
More problematic than its economic costs and political risks was
empire’s inconsistency with American values. At Protestant missionar-
ies rejoicing over the prospect of spreading Christianity through empire,
Bryan bristled that “[t]he command ‘Go ye into all the world and preach
the gospel to every creature’ has no Gatling gun attachment.”30 Harvard
Law professor James Bradley Thayer saw in imperial duties an opportu-
nity to enlarge American ideas of the nature and ends of government, as
“found in the reflex effect of colonial administration upon the home gov-
ernment, and its people and public men.”31 But Marion Butler, the pop-
ulist North Carolina senator, anticipated large numbers of office-holders
descending on the Islands like imperial carpetbaggers who “would not
only draw their salaries from our government, but would consider it their
privilege to plunder and oppress the Filipinos for their own personal profit
or gain.”32
Deeper than these contradictions, anti-imperialists posited a funda-
mental inconsistency between empire and the American republic. For
while “our guns destroyed a Spanish fleet,” Bryan asked, “can they
destroy the self-evident truth, that governments derive their just pow-
ers, not from superior force, but from the consent of governed?” With
Filipinos waging a war of independence, anti-imperialists believed that
American rule could be based only on coercion and thus violate what
Bryan termed the “controlling national idea.”33 Entwined with the
nation’s traditions and texts, self-government animated American polit-
ical institutions and delineated the purposes they could serve. Conse-
quently, “our form of government, our traditions, our present interests
and our future welfare, all forbid our entering upon a career of con-
quest,”34 lest empire transform or, worse, destroy their distinct American
identity.
Anglo-Saxonists in England and America had portrayed empire as
compatible with America’s biological nature. Historian Paul Kramer
demonstrates how the British attempted to convince Americans that they
shared a common biological destiny to expand their race’s dominion and
to spread their “unique, ‘free’ political values and institutions.”35 Anglo-
Saxon historians believed that Englishmen had been able to perfect their
inherited Teutonic models of self-government because of their peculiar
historical development in isolation from the continent.36 Thus, with the
simultaneous outbreak of the Spanish-American and Anglo-Boer Wars,
the British exhorted Americans to take up what British writer Rudyard
Kipling famously termed the “white man’s burden” and demonstrate
their innate ability to efficiently administer weaker races through their
“empires of liberty.”37
But Bryan rejected references to a common Anglo-Saxon imperial des-
tiny and denied its inevitability. For a heterogeneous polity increasingly
unreceptive to talk of Anglo-Saxon superiority, Bryan depicted destiny

not as a “matter of chance,” but “of choice”; not “a thing to be waited
for,” but “a thing to be achieved” and at all times determined by the
nation’s purpose.38 And America’s purpose beckoned her to a loftier call-
ing. Not only did her character and mission diverge from the British,
the American melting pot, Bryan argued, had combined the virtues of
many great civilizations and forged an American civilization superior to
the Anglo-Saxon. For while the British spread their empire of liberty “by
force of arms” and ultimately “for the benefit of Anglo-Saxons,” Ameri-
canism would, ‘by the influence of example, excite in other races a desire
for self-government and a determination to secure it.’”39
Blending the themes of destiny and decision, McKinley’s “gift from
the gods” framed the lack of thought, choice, and effort by which
Americans had obtained the Islands as preordination – albeit no longer by
their Anglo-Saxon blood, but by God. The Spanish-American War seemed
predestined in offering a unique opportunity to realize many objectives:
to protect and fortify American economic interests in Latin America and
the Pacific against European imperial competition; to express Christian
compassion by saving Cubans – and later, Filipinos – from a medieval
Spanish empire’s oppressive policies and practices; to secure in Manila a
naval base from which to project American power. Crystallized in a single
urgent decision, in other words, were multiple manifestations – commer-
cial, humanitarian, strategic – of the drive for American expansion in the
late nineteenth century.
But if receiving a divine gift betokened a divine purpose, what did it
mean for God to bestow a colony on a self-governing republic? To reject
the colony in order to shield self-government from empire, as Bryan
would have preferred, smacked of ingratitude and disobedience, even
cowardice. Instead, benevolent imperialists would accept God’s gift and
give back – propagating self-government, not by irresponsibly leaving
hapless Filipinos on their own, but by employing empire humanely to
prepare them to properly govern themselves.
Civilizing Benevolence through an American Rule of Law

By itself, however, benevolence sufficed neither to protect the American
republic from the dangers of empire nor to reconcile the contradiction
between the two modes of governance. Proposing a solution ten days
after the Treaty of Paris was signed, Republican Senator Henry Teller
of Colorado outlined for the Senate a colonial government that would
Civilizing Benevolence through an American Rule of Law 25
safeguard republic from empire, presaging what later took shape in the
Islands. Implying that colonialism need not be inherently despotic or
exploitative, Teller proposed that the United States administer the new
possessions not in violation of, but “in accordance with the great fun-
damental principles that permeate and underlie republican institutions,”
namely “that the just powers of government are derived from the consent
of the governed” and that it was “our duty to secure to these people
just such political rights and privileges as they are entitled to under our
system,” as qualified “by their condition.”40 For if American principles
followed the American flag to the Islands, then “there will be no harm
done” if it “floated there as an emblem of national power.” Rather, it
would symbolize the American people’s belief that their flag was “capa-
ble of giving to those people American law, American freedom, American
progress, and enabling them to share in prosperity with us as well as in
American glory.”41
To restrain colonial despotism with the same popular and legal limits
by which the American polity was governed was to invoke the American
iteration of the rule of law that was so foundational to the nation’s
existence and identity. Through a revolution consolidated by popular
law-making, Americans believed they molded out of disparate heritages
an exceptional nation.42 By extending their rule of law, they hoped to
Americanize colonialism and constitute an exceptional empire as well.
Exceptional Empire and the Rule of American Law

Because the rule of law was integral to the American conception of civi-
lized government, it was essential to the construction of benevolent impe-
rialism as a civilizing mission. Indeed, in explaining to his Filipino stu-
dents the philosophy and mechanics of their shared constitutional tradi-
tion, Associate Philippine Supreme Court Justice George Arthur Malcolm
singled out “its protections of the individual against arbitrary govern-
mental intrusion” as the single most important trait that distinguished
“modern civilized government” from the “ancient and medieval.”43 That
a sovereign people would willingly bind themselves to these limits in
writing, as in a contract, made their government even more civilized –
perhaps the most civilized. For considered unique to the American rule
of law was that it had a written repository, and encompassing the Islands
within the sphere of its principles extended to the imperial realm the dis-
course and practice structured by the foundational texts that gave them
concrete, definitive, and authoritative expression. Primarily through the
tradition’s most important articulation, the US Constitution, American
values would come to shape a colonial legal regime now included in the
constitutional conversation. For the US Constitution to be the source of
imperial restraint seemed exceptionally civilized and benevolent.
It was not that European imperialism was lawless, but Americans once
again perceived as unique their decision to use the substance of their own
laws to govern both citizens and subjects in the Islands. This self-image
found some support in past and present imperial practices. As Lauren
Benton demonstrates, plural legal orders proliferated in premodern colo-
nial regimes, but plural legal sources continued to be applied even after
increased state capacities facilitated consolidating legal hegemony toward
the era of high colonialism.44
As a republic, France had grappled with the contradiction between
imperialism and republicanism in her West African colonies. Like the
Americans, the French had justified colonial rule as civilizing; unlike
the Americans, they had elected initially not to extend their own laws
and forms of governance to their African subjects. Instead, Alice Conklin
shows that they governed their African subjects with their notion of native
law and administered French laws only to Europeans and Africans who
resided in French settlements and qualified as French citizens.45
If a sister republic withheld her legal and political institutions from her
colonial subjects, more so did monarchical imperialists. The Spaniards,
for example, had devised special laws, particularly the Laws of the Indies,
for their native subjects and later conferred on colonial governors vast
discretion to filter the application of the Spanish codes to the colonies.46
Like the French, the Dutch in the Netherlands East Indies opted to apply
Roman-Dutch law to Europeans and what they identified as customary
law to natives.47 Even liberal monarchies like Great Britain had deemed
the English laws and institutions they had extended to their white settler
colonies ill-suited to colonies inhabited by “weaker races,” such as India.
Yet the British could not bring themselves to embrace limitless authority,
for, as David Gilmartin explains, the history of the rule of law in India
was intertwined with their increasing “preoccupation in the eighteenth
and nineteenth centuries with law as the particular foundation of their
own political ‘genius’ as a conquering power – a mark, in fact, of British
political identity.”48 But while British law was as constitutive of British
national identity as American law was for Americans, it would not shape
her imperial image. Thus, the British elected to rule India’s Hindu and
Muslim groups using their respective laws as determined by Orientalist
scholars.49 As India’s plural legal system was formalized after the Crown
consolidated control over the colonial state following the 1857 Indian
Civilizing Benevolence through an American Rule of Law 27
Mutiny, its indigenous elements have since been shown by legal historians
to be almost completely displaced by a European legal order.50 Notwith-
standing these later revelations, turn-of-the-century American perceptions
of law in British India, along with other imperial legal regimes, remained
that of plurality.
Filipino Aspirations and American Principles

Filipino revolutionary leaders had counted on Americans precisely to
abide by their principles and help them win independence from Spain.
One of the last Spanish colonies established, the crumbling empire’s most
distant outpost was one of the last to revolt against Spain in August
1896. When the Spanish-American War broke out, Filipino rebel leaders
had been in exile in Hong Kong and Singapore after signing the Treaty
of Biak-na-Bato with Spanish officials in December 1897 to suspend
hostilities in exchange for reforms and cash. But even without official
reassurances from an American consul-general whose authority was neb-
ulous to begin with, Filipino revolutionary general Emilio Aguinaldo
responded to Admiral George Dewey’s request for Filipino troops to aug-
ment the American attack against the Spanish Navy and sailed to Manila
on an American vessel. Aguinaldo broke the treaty’s terms readily, he
later explained to General Thomas Anderson, because he “expected that
the great North American nation, which struggled first for its indepen-
dence, and afterwards for the abolition of slavery, and is now actually
struggling for the independence of Cuba, would look upon [the Philippine
Islands] with greater benevolence than any other nation.”51
But rather than respect “an honorable aspiration that should not have
been and is not offensive to the American people,”52 the anti-imperialist
General J. B. Weaver recounted with disgust how McKinley responded
“with fresh orders for the dispatch of additional troops and battleships
to Manila – and this after Spain had yielded her sovereignty and hauled
down her flag in all this vexed group of islands.”53 Puerto Rico had not
resisted American rule, and the United States had renounced sovereignty
over Cuba through the Teller Resolution. Aguinaldo, however, declared
independence on June 12, 1898, and retreated to the city of Malolos,
where he established his revolutionary government and held a consti-
tutional convention to draft the new Philippine nation’s charter. But
Filipino hopes were dashed when General Wesley Merritt arrived with
the US expeditionary force, took over Filipino trench works, shut rev-
olutionaries out of Manila when the Spaniards surrendered their colo-
nial capital to the Americans on August 13, 1898, and established a
government of military occupation the following day. At the Paris Peace

Conference four months later, Felipe Agoncillo, the fledgling Filipino gov-
ernment’s envoy, reported with dismay that Philippine independence was
not on the agenda. Worse, he was refused an audience at these negoti-
ations and subsequently by Secretary of State John Hay in Washington,
DC, after the Treaty of Paris was signed in December 1898. As Filipino
revolutionaries more clearly divined American designs for their coun-
try, relations between the two armies deteriorated. This triggered the
Philippine-American War on February 4, 1899, which galvanized the US
Senate to ratify the Treaty of Paris two days later.
Filipinos expected American sympathy and support, for they aspired
to establish a self-governing and constitutional republic like that of the
Americans. But when the First Philippine Commission, or Schurman
Commission, reviewed the Malolos Constitution, it pronounced it inad-
equate for violating “so many of the vital principles laid down by
Hamilton and Madison in the Federalist.”54 To the Schurman Commis-
sion, which was constituted in January 1899 and named for its chairman,
Cornell University president Jacob Gould Schurman, the misunderstand-
ing reflected in the Filipino charter bespoke a lack of capacity that dis-
qualified them from sovereignty. The Schurman Commission was sent
to the Islands prior to the outbreak of the Philippine-American War at
Admiral Dewey’s behest to help defuse escalating tensions between the
American military government and the revolutionaries. Tasked with rec-
ommending policies to facilitate “the most humane, pacific and effective
extension of authority,”55 it laid the groundwork for deploying scientific
investigative modalities,56 notably surveys like those devised by Colin
Mackenzie and Francis Buchanan for India in the 1800s, to map, bound,
count, and thus systematically make knowable the new colonial terrain’s
geography, population, and resources. In so doing, it established the pro-
cess for generating the abstract institutionalized colonial knowledge that
supplied proof of Filipino incapacity to justify American rule, consolidate
the colonial state, and warrant America’s civilizing interventions. But if
American colonial rule was forced on Filipinos, how could it be squared
with the consent that was basic to American democracy and enshrined in
the political covenant that her Constitution represented?
Capacity, Consent, and Constitution

The task of aligning imperial imperatives with constitutional principles
fell to McKinley’s Secretary of War Elihu Root. But when first invited to
Capacity, Consent, and Constitution 29
run the War Department in 1899, Root found the notion “absurd,” for
as he told the New York County Lawyers’ Association in 1915, “I know
nothing about war, I know nothing about the army.” McKinley’s mes-
senger, however, clarified that the president sought not a military expert,
but rather, “a lawyer to direct the government of these Spanish islands,
and you are the lawyer he wants.” Indeed, this “most sought after lawyer
in the American Bar” seemed well-suited to constructing a constitutional
colonial policy. While “other lawyers excelled him in particular qualifi-
cations,” Root’s biographer Philip C. Jessup found that “none equaled
him in his combination of wisdom, farsightedness, ingenuity, and influ-
ence with the courts.”57 Through his thriving New York corporate law
practice, Root had steered big business clients like the American Sugar
Refining Company through complicated legal thickets58 – experience that
equipped him to bring imperialism’s economic impetus in line with con-
stitutional considerations. Engagement in New York Republican politics
had made Root knowledgeable in constitutional and civil service reform.
Combining legal acumen and corporate and civic experience, Root proved
an ideal legal architect of the American colonial state.
Root incorporated consent and constitutionalism into McKinley’s
Instructions to the Second Philippine Commission, the executive order
that outlined the framework for the Philippine colonial state and served
as its first organic act. Described as “the most important single docu-
ment in American colonial history,”59 McKinley‘s Instructions laid the
foundation of American colonial policy in the Islands, which Congress
elaborated in two organic acts it subsequently passed in 1902 and 1916.
Implementing these instructions was the Second Philippine Commission
chaired by William Howard Taft,60 a federal court of appeals judge from
Ohio. Also known as the Taft Commission, it established civil govern-
ment in the Islands with Taft as the first civil governor.
Capacity and Universality

Justifying the absence of Filipino consent, Root confined the doctrine’s
scope to “the conditions for which Jefferson wrote it, and the peo-
ple to whom he applied it.” Universal rules, as Filipinos would learn,
were not universally applicable. In insisting that consent was an absolute
requirement for legitimate government, anti-imperialists had been guilty
of misapplying principle just as “countless crimes have been committed by
men quoting texts of Scripture or maxims of political teaching wrested
from their true context and meaning.”61 Since what rendered a peo-
ple’s consent operative in the first place was their capacity to exercise it,
what was universal was not consent, but the requirements of consensual
capacity.
By framing the central issue in terms of capacity, Root made explicit
assumptions referencing what postcolonial scholar Uday Singh Mehta
calls the “thicker set of social credentials that constitute the real bases
for political inclusion” within Western liberal culture and, by extension,
among the civilized sovereign states that represented these cultures. John
Locke derived liberal theory’s universal claims from “certain character-
istics that are common to all human beings,” mainly, that all men are
naturally free, morally equal, and rational. While this “anthropological
minimum” sufficed to guarantee natural rights, it did not entitle one
to political rights. For Locke, full participation presupposed that one’s
capacity for reason had been honed by upbringing within “a complex
constellation of social structures and social conventions” that “delimit,
stabilize, without explicitly restricting, the universal referent of his foun-
dational commitments.”62 This formative context was Western civiliza-
tion. Susan K. Harris, however, clarifies that the American milieu cast
this “universal legal actor,” to borrow Barbara Welke’s term,63 in an
Anglo-Saxon Protestant mold.64 Even before the Schurman Commission
could assess the Filipino people’s sovereign capacity, however, it had first
to determine whether such a people existed.
Applying the emergent ethno-linguistic criteria for nationhood in a
late nineteenth-century world where sovereign nation-states had, in the
words of historian Thomas Bender, “naturalized the nation as the most
basic, obvious form of human solidarity,”65 the Schurman Commission
pronounced the Islands’ inhabitants as neither a people nor a nation.
Instead of a unified political community sharing a common ethnicity,
language, and culture, it found, as the British had in India, congeries of
different races and tribes best managed by colonial rule. Derived from
the “Negrito,” “Indonesian,” and “Malay” races, the inhabitants com-
prised a “multiplicity of tribes” that spoke a “diversity of languages,”
displayed no “sentiment of nationality,”66 and exhibited “multifarious
phases of civilization,” with seventy-eight67 out of eighty-four being “wild
and pagan.” Far from representing the Islands’ many peoples, leaders of
the Philippine Revolution came from only one such “tribe” – the “Taga-
logs” – which Root considered as entitled to sovereignty over the Islands
as the “friendly Indians, who have helped us in our Indian wars, might
have claimed sovereignty over the West.”68
Thus, asserting sovereignty was not enough to create it. Just as lib-
eral rights were delineated in dealings between full and incomplete
Capacity, Consent, and Constitution 31
members of the American polity, international law scholar Antony Anghie

argues that the rules of sovereignty were forged in encounters between
civilized sovereign states and uncivilized non-sovereign groups.69 For
Filipinos to be self-governing, Americans required not only the existence
of common cultural ties, but also “the prevalence of knowledge and
enlightenment among the masses.” Majority of the inhabitants belonged
to six “civilized and Christianized” tribes,70 but were found inadequately
educated. Spanish-era education statistics revealed a ratio of only one
teacher for every 4,179 individuals in primary school. Worse, very few
natives reached secondary and tertiary schools, and most of those who
did, tackled curricula that prioritized instruction in Christian doctrine
over reading and writing. Thus, the Commission deemed this relatively
civilized majority as insufficiently fit to “maintain a popular form of
government.”71
Among the insular territories’ civilized natives, however, were excep-
tional men whom Root described as “highly educated and able” and
“public-spirited and patriotic.” In the Philippine Islands, these men were
the prominent, wealthy, and erudite ilustrados, or “enlightened ones,”
who subscribed to Western standards for capacity and believed that
they had met them. Representing a small segment of the Islands’ early
twentieth-century population, they hailed from urban and provincial elite
families living in port cities like Manila or Iloilo or close to their provin-
cial landholdings.72 Enriched by expanding trade in sugar and other cash
crops, these Spanish and Chinese mestizos earned advanced degrees, typ-
ically in law or medicine, from Manila and European universities and
were courted by both Spanish Governor-General Basilio Agustin and
Philippine revolutionaries to serve in their respective governments in the
waning days of the Spanish empire. Unfortunately, Root felt there were
“not enough” of these civilized individuals “to make a working govern-
ment which would be anything but an oligarchy.”73 His statement echoes
John Stuart Mill’s views expressed in his essay “Civilization” that the true
measure for determining whether “savages” could “be members of inde-
pendent societies with no need for superintending tutelage; or perhaps
even be members of democratic societies” was not a society’s exceptional
individuals, but what Mehta calls its “civilizational classification.”74 Yet
civilized as they were, even ilustrados were considered unready for self-
rule by American standards. With limited firsthand experience in demo-
cratic self-government, Root concluded, “many of them have merely a
theoretical rather than a practical acquaintance with the processes of
government.”75 But as Chapter 2 demonstrates, Americans would enlist
ilustrado cooperation, like the Spaniards and Philippine revolutionaries

before them, to ensure American colonial government’s success and legit-
imacy in the Islands.
Alternatives to Sovereign Nationhood

Anti-imperialists not only conceded Filipino incapacity, but also agreed
with imperialists that this disqualified them from statehood in the Union.
Unlike previous acquisitions, the Islands were not contiguous to existing
states or territories and were located in a tropical zone inhospitable to
white settlement. Moreover, their inhabitants were alien races closer in
color and habits to African Americans, Native Americans, and Chinese
immigrant laborers – groups already excluded from full membership in
the American polity and that complicated the mainland’s volatile racial
politics.
But anti-imperialists diverged over alternatives. Former Minnesota
Congressman Charles A. Towne proposed protectorate status,76 which
important ilustrados supported. Georgia Democratic Senator Augustus
O. Bacon filed a purpose resolution that would extend the administra-
tion’s Cuban policy to the Islands by preparing its inhabitants for self-
government, but without renouncing claims of sovereignty over them.77
Some, like Bryan and Marion Butler, contended that Filipinos were enti-
tled to govern themselves in any event and would become “more capable
of self-government as they have the burdens and responsibilities of gov-
ernment thrust upon them.”78 After all, “the only way to learn to walk,”
according to statesman Charles Francis Adams, “was to try to walk.”
Skeptical that “nations placed under systems of ‘tutelage – taught to lean
for support on a superior power – ever acquired the faculty of independent
action,”79 Adams advocated for the Islands the same “hands-off policy”
previously adopted by the United States in Mexico, Haiti, and Venezuela.
But for the coalition’s Southern Democrats, like South Carolina’s senator
and former segregationist Governor Benjamin Tillman, what underlay
this apparent liberality, in contrast to the imperialists’ paternalism, was
not so much faith in Filipino capacity, but rather the understanding of
“what it is to have two races side by side that can not mix or mingle
without deterioration and injury to both and the ultimate destruction of
the civilization of the higher.”80
Disparate anti-imperialist views led to diffuse approaches toward the
Treaty of Paris: some lobbied for the Treaty’s outright rejection, while
others urged qualifying acceptance through purpose resolutions. Bryan’s
faction, however, came to believe that “a victory won against the treaty
Capacity for and through Self-Government 33
would prove only temporary if the people really favor a colonial pol-
icy.” Consequently, he and his allies ceased opposing the Treaty and
instead urged the McKinley administration to clarify its Philippine pol-
icy and submit the issue of colonialism to the American people in the
1900 presidential elections.81 Although it is uncertain whether imperi-
alism decided the 1900 elections,82 historian Frank Golay nonetheless
notes that “throughout the remaining period of American rule Republi-
can presidents and majorities of Republicans in Congress behaved as if
they believed that the election of 1900 was a mandate for indefinite reten-
tion of the Philippine colony”83 that sanctioned their particular vision of
colonialism.
Capacity for and through Self-Government

This vision involved creating in Filipinos the civilized capacity required
for self-rule – a capacity demonstrated by the best of the ilustrados.
Though insufficient in number to support a democracy, these exceptional
natives represented to Root “what their people are capable of becom-
ing.”84 Scholars have grounded Root’s conviction that the inferior Fil-
ipino race had potential for improvement in a Lamarckian conception of
race that was influential in the late 1800s. Unlike biologically determin-
istic theories, this evolutionary notion stressed the environment’s role in
shaping, and thus potentially improving, traits.85 Similarly, the Schurman
Commission concluded that due to miseducation under Spanish rule, “the
average native has never as yet had a fair opportunity to show what he
can do”; however, the “attainments of some of his fellows who have had
exceptional advantages have been such as to dispose the commission to
credit him with ability of no mean order.”86 Consequently, as Chapter 4
elaborates, American colonial actors in Washington and Manila saw the
civilizing mission as a comprehensive education that would modernize
Filipinos and their milieu through a progressive colonial government. In
creating consensual capacity and enlisting a measure of native assent, the
American program could be portrayed as conforming to her consensual
tradition.
Material Improvements
Unlike its Spanish predecessor, which the Schurman Commission had
accused of taxing Filipinos heavily yet failing “to accomplish even the pri-
mary means of government,”87 the Insular Government would be neither
extractive nor exploitative. Indeed, when the US Senate passed the army
appropriations bill that funded the larger army requested by McKinley,

it adopted an amendment submitted by Ohio Republican Senator Joseph
Foraker prohibiting the grant of any franchises or concessions of any
kind in Cuba during US occupation. By upholding the prohibition, which
Golay notes was “the first time the issue of exploitation in colonial policy
had been brought to a vote,” the Senate “revealed a disposition to see
that the territories taken from Spain would remain free of exploitation as
long as they were under US control.”88
But beyond avoiding harm, the Insular Government would enlist its
resources for its civilizing agenda. To downplay profit motives meant
that commerce would not occupy the central place that Americans
ascribed to it in traditional imperial policies, but would be secondary
to their civilizing mission, constituting only one of several other means
toward this end. Even commerce, in other words, had a humanitarian
character.
That European imperial trade seemed driven primarily by wealth
extraction perhaps stemmed from how earlier empires got their start:
Spain and Portugal had struck out in search of Indian spice routes and
precious metals, while the British and the Dutch had first established
their colonial presence through chartered trading companies. Likewise,
the English East India Company Raj had gained notoriety for plundering
Bengal by using local taxes to finance imports and infrastructure and with-
drawing funds to cover home charges and repatriate profits.89 Against
this background, American colonial officials like Governors-General W.
Cameron Forbes and Francis Burton Harrison believed that by mak-
ing civilization the objective of commerce rather than its incidental by-
product, American colonial programs reversed standard imperial priori-
ties without sacrificing commercial gain. Forbes contended that altruism
reaped the same, if not greater, dividends as that sought by Europeans,
as the idea gradually gained ground “that it was good business and good
policy to win the good will of the governed people and that kind treat-
ment resulted in better trade relations and less draft on the home treasury
than engaging in hostilities and quelling insurrection.”90
Depicting benevolent imperialism as different from traditional imperi-
alism did not, however, mean that it was truly distinct. Prevailing impres-
sions notwithstanding, European imperialism had not been completely
bereft of noble motives.91 As Anghie clarifies, a complex combination
of civilization and commerce, the moral and the material, had always
served as the “twin pillars” or paired motivations of colonialism dating
back to the Spanish conquest of the Americas.92 Also far from unique
Capacity for and through Self-Government 35
was the decision to use commerce as a civilizing tool. When nation-

states took over colonial administration from their chartered compa-
nies, they began to stress colonialism’s humanitarian justifications and
to view commerce as a means to civilize and develop the colonies93 as
they sought to formulate “a new ideological basis for the expansion of
European Empires” and “to establish a firm and clear framework for
the management of the colonial scramble which otherwise threatened to
exacerbate inter-European rivalries”94 at the seminal 1884 Berlin Confer-
ence. But even before the British Crown directly governed India, reform
had been urged and attempted by Anglicists like law officer Thomas
Macaulay and Lord William Betnick. Under Crown rule, the marquis
of Dalhousie, Governor-General from 1848 to 1856, introduced modern
transportation and communication technologies to consolidate British
legal and territorial sovereignty over India and to bring about material
progress.95 Notwithstanding inconsistent implementation, the Anglicist
reform agenda represented the nascent stage of the emerging imperial
ideology. Anghie regards the new humanitarian rhetoric as “extremely
important because it refined the justification for the colonial project.”
Trade was no longer “a means of simply maximizing profit and increas-
ing national power,” but “an indispensable part of the civilizing mission
itself.” Because commercial expansion was the mechanism for civilizing
backward natives, “it was essential that trade be extended as far as pos-
sible into the interior of all these societies.”96 Thus, in both its civilizing
aspirations and embrace of commerce as a civilizing tool, McKinley’s
benevolent imperialism exemplified the new imperial ethos.
Nonetheless, civilization for its own sake was not benevolent imperial-
ism’s goal, but merely a means toward the loftiest, most quintessentially
American of ends – self-government. Because Filipinos aspired to self-
government, it seemed fitting that they be modeled after those whose
experiment in constitutional democracy was thought a resounding suc-
cess. To be civilized enough for sovereignty thus meant to be American-
ized. Just as Turner had premised the survival of American democracy on
American economic expansion, American colonial policymakers regarded
creating a similar material basis as indispensable to sustaining insular
democracy. With American self-government inextricable from American
civilization, legal scholar Paul D. Carrington calls American colonial-
ism in the Islands an “experiment in self-duplication.”97 Reproducing
American civilization using American principles and methods, benevolent
imperialism could not but cohere with American tradition. In shepherd-
ing their colony toward independence, Americans seem justified regarding
their project as exceptional, for no traditional imperialist would under-

take this task until the Mandate System was established after World
War I.98
Learning by Doing
Ultimately, creating sovereign Filipinos transcended improving their
material condition. Self-duplication involved replicating the practices of
American government – practices ordered by the American constitutional
tradition that embodied the conviction that a government thus bounded
by the rule of law was civilized. Integral to American self-government,
democratic representation and rights formed an essential component of
Filipino education in sovereignty, especially since the Taft Commission
saw even the ilustrados as having “a faint conception of what real civil
liberty is and the mutual self-restraint which is involved in its mainte-
nance.”99 Looking once again to British India, Americans felt they did
their brethren one better, for although Anglicist reformers had attempted
to create a gentlemanly Indian elite that law officer Thomas Macaulay
described as “English in taste, in opinions, in morals, and in intellect,”
they still withheld liberal privileges from India while it was not suffi-
ciently English. British liberal theorists and colonial policymakers like
John Stuart Mill, for example, contended that India’s difference flatly
excluded her from enjoying full political rights and rendered her in need
of despotism and eligible for permanent subjugation.100 When sporadic
reform culminated in the 1857 Indian Mutiny, the British settled on man-
aging and containing diversity among India’s congeries of people under
consolidated Crown control, while granting limited participation to more
civilized elite allies.101
Americans, however, believed that Anglicist reform initiatives had
erred precisely in denying Indians the privileges of civilized government
while they were still uncivilized. For if limited government was the most
civilized of governments, then it seemed logical that allowing the unciv-
ilized to engage in civilized practices would be civilizing in itself. Root
himself concluded, “the most important fact to be considered is that
the people have not yet been educated in the art of self-government, or
any really honest government”102 – an education that American colo-
nial rule would provide. Harrison’s memoirs depicted the commitment
to Americanize Filipinos as generous for departing from the “cardinal
principle” that inhibited European imperialists from interfering with
native customs and beliefs. Despite conceding the risks of remaking local
social systems and acknowledging that entirely different cultures may be
Conclusion 37
entitled to develop on their own, Harrison and his contemporaries viewed

as niggardly this “cardinal principle” because it “conveyed to the peo-
ples of Asia little share in the benefits of European civilization,”103 thus
calling it “the clearest evidence” that European colonization in Asia had
not been conducted “for the benefit of the people, but for purposes of
gain.”104 Thus, American colonialism would be altruistic, not only for
imparting to Filipinos its way of life, but also for being less despotic and
more mindful of the liberties of subjects. Unlike European powers for
which “the inferiority of the Asiatic – an inferiority mental and moral as
well as social” was an inflexible axiom, Harrison believed that Americans
would not and did not insist that the white man’s prestige “be maintained
at any and all hazards” and that the Asiatic “be kept in his place.”105
But was this true? Was a well-meaning promise of inclusion that might
never materialize if wards failed to qualify equivalent to a frank admission
of difference and perpetual exclusion? More fundamentally, however, we
might ask whether liberalism could consistently serve as both vehicle and
destination, as means as well as ends. If civilization was a precondition
of liberalism, did it follow that liberalism was the best instrument for
civilization when it was designed to block the intrusive transformations
that civilization required? These were open questions at the turn of the
twentieth century. New to the imperial game and flush from the success
of their earlier experiment with republicanism, Americans were confident
about the prospects of their colonial constitutional experiment.
Conclusion
With the closing of the continent, late nineteenth-century Americans came
to believe that extending their frontier was key to their republic’s survival
and sought to project American influence overseas in a variety of ways.
Becoming increasingly embroiled in an international political game whose
major players were imperial powers, many influential Americans became
convinced that imperialism was America’s destiny as a new world power.
To these actors, the seemingly effortless acquisition by the United States
of the former Spanish colonies seemed preordained. To those opposed
to imperialism, however, they represented both a temptation to betray
America’s most cherished ideals, the most central being the doctrine of
consent, and a curse that imperiled the republic.
To align America’s republican origins with her imperial future,
McKinley’s benevolent imperialism tempered empire’s autocratic tenden-
cies by casting the colonial project as a civilizing mission that would be
conducted through, as it was restrained by, the consensual and consti-

tutional limits by which America had uniquely realized the rule of law.
But, as the next two chapters will elaborate, benevolent imperialism took
away with one hand what it had promised with the other, for Filipino
incapacity would mute both the scope and force of these limits. Chapter 2
examines the consensual basis of American colonial rule and Chapter 3,
its constitutional dimension.
2
American Theory, Spanish Structure,

and Ilustrado Capacity
Inventing the Filipino People, Constructing the

American Colonial State
Campaigning to reelect President McKinley in 1900, Secretary of War

Elihu Root defended benevolent imperialism by reiterating the Schurman
Commission’s findings that “there is no Philippine people” but rather
“more than eighty different tribes, speaking more than sixty different
languages” occupying “hundreds of islands.” But while the consent of
peoples who were “incapable of self-government”1 was both unneces-
sary and irrelevant, American colonialism could not be overtly coercive
without contradicting the national ideology, undermining fragile public
support at home, and compromising native cooperation essential to its
success on the ground. Thus the McKinley administration justified colo-
nial rule as creating a civilized, capacitated Filipino people whose consent
would be meaningful and whose sovereignty would be viable.
By inventing their own Filipino people, however, benevolent imperial-
ists rejected claims by the Islands’ most educated inhabitants, the ilustra-
dos, that they already possessed the civilizational credentials for indepen-
dent nationhood. At the same time, the need to acquire the knowledge
to control the Islands compelled American military and civilian officials
to enlist ilustrado expertise and experience. Tension between the Filipino
elites’ strong desire to immediately participate in governing their society,
on the one hand, and the Americans’ lack of familiarity with their new
Philippine colony, on the other, drove much of the early establishment
of the Government of the Philippine Islands. The urgency of resolving
this tension prompted American authorities to adapt the Spanish colonial
infrastructure that was already in place, a project requiring ilustrado col-
laboration, and to animate it with the principles and practices that had
structured American legal and political development.
39
40 American Theory, Spanish Structure, and Ilustrado Capacity
To convince Filipinos to lay down arms and substitute one colonial

master for another, benevolent imperialists attempted to differentiate
themselves from their Spanish predecessors by guaranteeing political par-
ticipation preparatory to self-government and by portraying this tutelage,
rather than immediate independence, as the Filipinos’ true objective.
By itself, tapping native leaders to help run their colonial government
did not distinguish American colonialism from traditional imperialisms.
But Americans believed that the Spaniards and the British had employed
natives merely to assist in performing government services, such as tax
and tribute collection, and instituted elections to select native agents for
indirect rule.2 By contrast, what promised to set apart native partici-
pation under US rule was that it was designed to be representative in
nature and tutelary in objectives, to signify assent to American colo-
nial rule, and, above all, to be ordered by the popular and legal limi-
tations essential to the American rule of law. Thus, the Government of
the Philippine Islands would facilitate the expression of the popular will
and thus be mindful of native consent; it would be efficiently operated
according to the civil service system’s scientific, merit-based criteria; and
most important, its power would not be despotic, but separated func-
tionally and curbed by a Bill of Rights. Participation in this new lib-
eral colonial regime entailed meeting universally couched qualifications
for capacity, which only ilustrados could fulfill. While insufficient for
independence, ilustrado capacity and cooperation proxied for the con-
sent needed to legitimize American colonial rule within her democratic
tenets. But this effectively anointed these elites as the relevant Filipino
people whose consent mattered and enabled them to institutionalize their
socio-economic ascendancy. Through this balancing act were American
political and legal principles incarnated in the Islands, but their result-
ing institutional expressions created a colonial government whose impact
often thwarted their aims.
Filipino Consent and the Moral Legitimacy of American Rule

By denying Filipino nationhood, it seems Secretary Root and the Schur-
man Commission avoided having to recognize their juridical existence
under international law and to secure their consent to American rule.
But in so doing, they negated half a century of ilustrado nation-
building along Western standards of sovereignty. At the same time,
it was among ilustrados that the American colonial program found
its most receptive audience and from them that Americans sought the
Filipino Consent and the Moral Legitimacy of American Rule 41
support that would sustain their colonial regime’s survival and moral
legitimacy.
The Ilustrado Origins of Filipino Nationhood

By identifying themselves as “Filipino,” ilustrados signified their civi-
lizational equality with Philippine-born Spaniards from whom they had
appropriated the term. These Spanish creoles, called insulares, coined
“Filipino” to denote their closer identification with the Islands and justify
their demand for preference to colonial government jobs over Spaniards
considered more purely Spanish, more loyal, and more deserving of high
positions in the Manila bureaucracy. These latter Spaniards were divided
into two groups: the peninsulares from Spain and other insulares who
had arrived from the newly independent American colonies.3 In contrast,
the most prominent ilustrados were wealthy Spanish or Chinese mestizos
whose fortunes derived from the late nineteenth-century trade in cash
crops, especially sugar. By 1836, sugar had become the chief Philippine
export, and the century’s end saw the integration of the Philippine sugar
industry into the world market. Attending the same schools, reading
the same books, writing for the same journals, marrying each others’
sisters and cousins,4 these ilustrados constituted what political scientist
and Southeast Asia expert Benedict Anderson describes as a cohesive class
that “inaugurated the self-conscious consolidation of a pan-Philippine
mestizo stratum.” Within this class, elements of proto-nationalism were
incubated, giving rise to the imagined community: toward the turn of
the century, ilustrados also “began calling themselves ‘Filipinos,’ a term
which up till then had designated only Spanish creoles.”5
Ilustrados first claimed to be “Filipino” in the campaign to replace
Spanish regular priests, or those belonging to religious orders, with native
secular, or diocesan, priests in the Islands’ parishes. For allegedly inciting
a revolt by native soldiers, the movement’s leaders were summarily exe-
cuted in 1872, but the deaths of Fathers Jose Burgos, Mariano Gomez,
and Jacinto Zamora inspired even greater efforts at reform. Launching
the Propaganda Movement, reformist leaders Jose Rizal and Marcelo
del Pilar exposed the abuses of Spanish colonial rule, especially at the
hands of friars, who embodied both sacred and secular authority. As
Filipinos, reformists clamored for the same political rights enjoyed by
Spaniards, including natural rights arising out of the general stream of
ideas of late eighteenth-century European liberalism,6 assimilation of
the Islands as a Spanish province, and representation in the Spanish
Cortes.7
Ilustrado mastery of Western discourses was validated by international

honors, such as the gold and silver medal victories of artists Juan Luna and
Felix Resureccion Hidalgo at the1884 Madrid Exposition of Fine Arts.
Thus vindicated, ilustrados felt equally qualified to move up the colony’s
social and political hierarchy. But when insular and peninsular Spaniards
coalesced to thwart these “brutes laden with gold”8 and denigrated native
accomplishments by attributing to Spain any culture they managed to
acquire,9 Rizal began to see no hope of full inclusion. He spearheaded
ilustrado efforts to forge a distinct Filipino identity and history from an
ancient indigenous pre-Spanish culture that was depicted as civilized in its
own right, albeit stunted by Spain, and formed La Liga Filipina in 1892
to spread the idea of an independent Filipino nation. While advocating
separation through evolution rather than revolution, the Liga nonetheless
spawned the Katipunan, or the revolutionary movement, that same year.
But ilustrado identity deserves further clarification, given the central
role that this class has played in Philippine history and the term’s inconsis-
tent usage by historical actors and scholars alike. While the literature has
tended to conflate education with wealth and to equate ilustrados with
the wealthiest elites and revolutionaries, with the proletarian masses,10
Michael Cullinane’s exhaustive study considers ilustrados a subset within
Filipino elites and identifies the attainment of advanced university degrees,
licentiates (or licenses to practice), or professional titles as their common
denominator. Examining geographic origins, sources of wealth, levels of
education, and types of profession, Cullinane maps out four overlap-
ping but internally differentiated elite groups: municipal, provincial, and
urban elites, and the urban middle sector. Taken together, these elites
made up only one-tenth of the Islands’ late nineteenth-century popula-
tion.11 Of these four groups, two came to dominate Philippine politics
from the colonial period through independence: the urban and provincial
elites who were co-opted into American colonial rule and from whom
Secretary Root excluded the revolutionaries.
Although neither as wealthy nor as educated as their urban and provin-
cial counterparts, Katipunan leaders were nonetheless elites, though not
always ilustrados. Katipunan founder Andres Bonifacio, for example,
came from the urban middle sector, which was composed mostly of
employees who derived their incomes “wholly or partially from salaries
related to their employment in the bureaucratic and commercial offices
of the urban centers of Manila, Cebu, and Iloilo.” General Emilio
Aguinaldo, the revolutionary government’s president, belonged to muni-
cipal elites, which held the highest municipal offices as members of the
principalia. Principalia, or native chieftains, were charged with tax and

tribute collection, owned property in their areas, and “often dominated
through various means the lives of numerous dependents.”12 Root, how-
ever, wrote off Aguinaldo as a “Chinese half-breed” leading a mere
“Tagalog tribe.”13 Properly an ilustrado was Aguinaldo’s advisor Apoli-
nario Mabini, who held a law degree and gave the Katipunan ideological
direction. But Daniel R. Williams, the Commission’s Secretary, dismissed
Mabini as “a student philosopher dealing with abstract and purely theo-
retical problems” for whom all attempts to apply principles “to concrete
conditions in the islands proved futile.”14
At the Philippine Revolution’s outbreak in 1896, the Filipino nation
had crystallized into a community in the minds of its adherents.15 By the
American occupation, the imagined nation was congealing into an actual
state – capable of declaring independence, drafting a constitution, and
organizing its government. To President Aguinaldo of the aborted Philip-
pine Republic, these acts evinced “a people making superhuman efforts
to revindicate their sovereignty and their nationality before the civilized
powers.” Interestingly, this stillborn Philippine Constitution created a
government whose power, like that of the United States, was divided
among executive, legislative, and judicial branches and limited by a char-
ter of rights and liberties. Having chosen from among “the governments
today recognized and observed among cultured nations,” that form which
was “most compatible with their aspirations, endeavoring to adjust their
actions to the dictates of reason and of right,” Filipinos exhibited “their
aptitude for civil life.”16 Although Filipinos discovered that it was one
thing to claim sovereignty and quite another to cement it, their notions
of nationhood would persist and reemerge to inform their challenges to
American rule.
Wooing Filipino Consent

While dismissing the necessity of Filipino consent, Americans nonetheless
claimed that Filipinos acceded to their colonial program. The Schurman
Commission had found “perfect coincidence between the theory and prac-
tice of our government on the one hand, and the aspirations and ideals
of the Filipinos on the other,” since the “very thing they yearn for is
what of all others our Government will naturally desire to give them –
religious liberty, fundamental personal rights, and the largest practical
measure of home rule.”17 Essential to success on the ground, concern
for Filipino consent also responded to ideological imperatives that helped
sustain public support at home and American self-image abroad. As the
historian Peter Stanley observes, “[t]he character of the Philippine insur-

rection and the politics of imperialism at home required that victory be
complemented by accommodation – that Filipinos be not merely defeated,
but converted.”18 But having negated Filipino nationhood, who, exactly,
did Americans consider “the Filipino people” and in what way did they
assent?
Categorizing revolutionaries as savage tribesmen did not preclude
American officials from trying to win them over just the same. When
General Wesley Merritt established American military government in
the Islands, his August 1898 proclamation coupled demands for surren-
der with promises of protection and meaningful participation, reassuring
Filipinos that Americans had “not come to wage war on them, but to pro-
tect them in their homes, in their employments, and in their personal and
religious rights.”19 Similarly, when McKinley issued his famous “Benevo-
lent Assimilation” order after the Treaty of Paris was signed on December
1898, he affirmed that it was America’s “high mission” to substitute “the
mild sway of justice for arbitrary rule,” but insisted nonetheless that there
must be “sedulously maintained the strong arm of authority to repress
disturbance and to overcome all obstacles to the bestowal of the blessings
of good and stable government upon the people of the Philippine Islands
under the free flag of the United States.”20 Fearing that McKinley’s thinly
disguised ultimatum would reignite war with the revolutionaries, the
new military governor General Elwell Otis released an edited version
that muted its threats and highlighted its beneficent promises. President
Aguinaldo, however, managed to obtain the original text, prompting him
to issue a counterproclamation announcing the Filipinos’ intention to
defend the freedom they had won from Spain.21
Revolutionaries remained unreconciled to American occupation even
after the Schurman Commission arrived and issued its April 4, 1899,
proclamation promising Filipinos “the largest measure of home rule and
the amplest liberty consistent with the supreme ends of government and
compatible with those obligations which the United States has assumed
toward the civilized nations of the world.”22 Insisting on greater speci-
ficity, Aguinaldo and his officers rejected Secretary of State John Hay’s
plan that had provided for a governor, cabinet, and judiciary appointed
by the US president and that limited Filipino participation to a cabinet
and an advisory council chosen by Filipino electors with carefully cir-
cumscribed qualifications. Since “the Spaniards had promised them more
than [Americans] did and had done nothing,” revolutionaries “asked for
acts” to substantiate verbal guarantees.23
Concrete acts would be necessary to win over revolutionaries as well

as the masses. For while heartened that their proclamation had “attracted
large attention of natives within our lines,” the Schurman Commission
saw that the insurgents were “alert . . . to keep their people in ignorance
of America’s real purposes” and had issued orders prohibiting, under
pain of death, the reading of the proclamation to prevent “disaffection
among their followers should their illusions and false understandings
be dispelled.” To convince the common folk that American intentions
were sincere, the Commission urged that civil government be immediately
established to provide “an ocular demonstration, which would carry to
the conviction of the most incredulous and hostile critic, of the natural
harmony subsisting between the purposes and policy of the United States
and the reforms and guaranties desired by the Filipinos.”24
But not all natives would be so wary. Within the revolutionary govern-
ment were urban and provincial elite ilustrados who were eager to assume
leading roles in any future Philippine government. Prevented from serving
in the Spanish colonial administration, they welcomed Spanish Governor-
General Basilio Agustin’s eleventh-hour invitation to organize and oper-
ate an autonomous colonial government when the Spanish-American War
erupted.25 But they hedged their bets and also joined the revolution-
ary government, where President Aguinaldo deferred to their education,
experience, and expertise and asked them to draft a constitution for the
new Philippine Republic. Following Spain’s defeat, ilustrados lost control
over the fledgling government to more radical and middle-class national-
ists and thereafter began talks with US military officers, while holding on
to their Malolos posts, and used their influence with the Filipino revolu-
tionaries primarily to sue for peace.26
The Commission’s efforts bore their greatest fruit with these elites,
for “many of them eventually became the Commission’s strongest friends
and supporters in the islands.”27 As the most Westernized Filipinos, these
ilustrados were natural mediators between the new colonizer and the
natives. Persuading them to embrace American-style democracy could,
in turn, draw the masses to the American fold. Just as British Anglicists
sought to cultivate in India a westernized gentlemanly elite who shared
the values of its own gentlemanly ruling class,28 both US Army officers
and the Schurman Commission consulted these “leading citizens” in the
earliest days of American occupation. After studying the various con-
stitutional programs drafted by ilustrados,29 the Schurman Commission
concluded that what Filipinos really wanted “above every other thing”
was not independence, but “a guaranty of those fundamental human
rights which Americans hold to be the natural and inalienable birthright

of the individual but which under Spanish domination in the Philippines
were shamefully and ruthlessly trampled upon.”30
Beyond purporting to fulfill Filipino political aspirations, the Ameri-
can program presumed to realize their ultimate destiny. Rejecting Filipino
nationhood, Americans nevertheless selected the reformist and pacifist
Jose Rizal as this non-nation’s hero, instead of revolutionary leaders
Aguinaldo and Bonifacio,31 to model what Filipinos could achieve given
the right opportunities under their rule. To wean Filipinos from Spain,
they appropriated Rizal’s accounts of the Islands’ pre-Hispanic civiliza-
tion that Spain had stymied. But to prevent these narratives from under-
mining Filipino attachment to their new colonial master, the historian
John Schumacher writes that Americans supplied their own conclusion:
that Filipinos could “eventually become a great nation under American
tutelage, if only they embraced American ideals, values, and practices.”32
But Americans saw what they wanted to see. The Schurman Report
itself acknowledged “the ideal of Tagalog insurgent leaders” was “an
American protectorate over their so-called ‘Philippine Republic’” – an
arrangement endorsed by the American Democratic Party’s platform dur-
ing the 1900 US presidential elections.33 Thus, when the Second Philip-
pine Commission succeeded the Schurman Commission in June 1900, its
president William Howard Taft reported to Secretary Root that resis-
tance persisted, because revolutionaries thought they might secure their
protectorate if Democratic presidential candidate William Jennings Bryan
defeated McKinley for the presidency.34 Seeming to validate his impe-
rial agenda in the mainland, McKinley’s victory also precipitated greater
ilustrado exodus to the Insular Government and warranted excluding
and eventually persecuting natives who continued to support rival politi-
cal agendas.
Deeds, not Words

In the uneasy aftermath of Spain’s surrender, American military authori-
ties already began building the American colonial state in the Islands.
Nine days after Spain turned over their colonial capital to the United
States, General Merritt issued General Order No. 8 restoring the civil
jurisdiction of local courts that he had earlier replaced with military
tribunals35 and, with the help of prominent ilustrado lawyers, reacti-
vated the insular bureaucracy and local government units in pacified
areas. Likewise, they tapped ilustrados to run these revived units, as
many of them had served as judges and administrative officials under the
Spanish colonial regime. When General Otis reconstituted the Audien-

cia, or the highest Spanish colonial court, in May 1899, he staffed it
with six prominent ilustrado lawyers along with three American army
officers. Recognized by Americans as the most brilliant native lawyer,
Cayetano Arellano became this Audiencia’s Chief Justice and held this
post after the new Philippine Supreme Court was created in 1901 until
his retirement in 1920. Ilustrado involvement was deemed of “absolute
necessity,” given that the alternative of having military authorities devise
a new system “was plainly impracticable.”36 These Filipino elites viewed
American state-building initiatives as providing the deeds rather than
words that concretely demonstrated the new conqueror’s commitment to
establishing an efficient, limited, and participatory colonial government.
In turn, their reactions validated the Schurman Report’s conclusion that
what Filipinos truly wanted was “good government” rather than inde-
pendence and that they would accept American rule if it would not be
absolutist, oppressive, and incompetent like Spain’s.
The foundation laid by the US military governors shaped the subse-
quent colonial state-building efforts of civil authorities. In April 1900,
President McKinley directed Taft and the Second Philippine Commis-
sion to “continue and perfect the work of organizing and establishing
civil government already commenced by the military authorities,” which
the US Congress subsequently “approved, ratified, and confirmed” in
the preamble of the 1902 Philippine Organic Act. The Taft Commission
also continued the military’s practice of collaborating with the most elite
ilustrados and institutionalized it through the “policy of attraction.”
More than any single American, William Howard Taft influenced the
colonial content and contours of Philippine constitutional democracy. A
former judge of the Ohio Superior Court and the United States Court
of Appeals for the Sixth Circuit, this Yale College and Cincinnati Law
School alumnus was, like Secretary Root, a member of the American
legal and political elite whose legal training suited him to the meticulous
work of colonial state-building. In his various roles as head of the Second
Philippine Commission, the Islands’ first American Governor-General,
Secretary of War under President Theodore Roosevelt, and, finally, the US
President, Taft exerted tremendous influence over the shape and direction,
the conduct and character of American colonial governance in the Islands
during the first thirteen years of American rule. For this reason, Philippine
historians have come to refer to this early period as the “Taft Era.”
Inclined by his conservatism toward regularity and a hierarchical and
organic view of the social order,37 Taft was predisposed to oversee his
Filipino charges’ political education with a firm hand and to work with
the ilustrados who comprised the Islands’ “better class.” Although pater-
nalistic toward his “half devil, half child” wards, Taft did not treat Fil-
ipinos as social inferiors. Unlike his military predecessors, he carefully
avoided drawing the color line at official receptions, for his “most impor-
tant discovery” – and one to which his biographer Henry F. Pringle
attributes his success as colonial governor – “was that the Filipinos were
proud and sensitive and quick to resent any implication of being an infe-
rior race.”38 Indeed, Taft’s “policy of attraction” effectively harnessed
and institutionalized a preexisting social dynamic. Several models have
tried to account for this relationship, but the most influential theory
has been Carl Lande’s patron-client dyad. Lande’s monograph Leaders,
Factions, and Parties explained that the unequal distribution of land
and the rise of the agricultural export economy during the late Spanish
period had shaped Philippine society into a two-class system composed of
wealthy landowners and peasant masses. These two classes were bound
by obligations of mutual aid that were rendered on an individual rather
than a collective basis. That is, the wealthy, who could spare cash or
grain, were traditionally expected to help poor peasants, who were in a
chronic state of need. In return for aid received, the poor reciprocated
“with such intangibles as personal loyalty and obedience”39 – including
a host of personal services to help his rich patron achieve his personal
goals. Philippine patron-clientelism, however, seems to have evolved from
an indigenous prototype – that of the “chief,” “big man,” or “man of
prowess,” suggested by political scientists Patricio Abinales and Donna
Amoroso. By demonstrating “spiritual power that could enhance com-
munity well-being” through his achievements in warfare and trade, this
charismatic leader could command personal loyalty and increase the num-
ber of his extended kinship group.40 Such goals or achievements would
later include winning electoral office, in which case aid or prowess would
take the form of government patronage. An anthology by historians Ruby
Paredes, Glenn May, Alfred W. McCoy, and Michael Cullinane clearly
illustrates this phenomenon, directly applying patron-client analysis to
political interactions between American and Filipino governing elites and
between Filipino elites and their mass constituencies.41
Upon establishing civil government in the Islands in 1901, the Taft
Commission became the colony’s highest governing body and was
renamed the Philippine Commission. Appointed as its first Filipino mem-
bers were Trinidad H. Pardo de Tavera and Benito Legarda, both wealthy
and European-educated Manila ilustrados, and Jose Luzuriaga, a scion
Colonial Government of, for, and by the Filipino People 49
of sugar elites from Negros. Commissioner Pardo de Tavera and Chief

Justice Arellano accompanied the Philippine Commission as it organized
municipal governments in the pacified areas and helped persuade natives
to accept American rule.42 Because of their loyalty and service, this
ilustrado faction was the only one allowed by Governor-General Taft
to organize a political party during the “period of suppressed national-
ism”43 from 1900 to 1905. Named the Partido Federal, this organization
adopted annexation or statehood as its platform.
While they cultivated Federalistas, American officials began to
marginalize groups proposing alternative agendas. Like the revolutionar-
ies, Manila ilustrados who styled themselves as “consistent nationalists”
also favored protectorate status.44 But when Taft got wind in July 1900
that a faction led by Pedro Paterno intended to lobby for a protectorate
at a banquet honoring the Taft Commission, he threatened to boycott
the party until his host relented, flatly repudiating the possibility that
the United States would ever “assume responsibility to the world for a
government in which it could exercise no direct influence.”45 Revolu-
tionaries were brutally pursued, first, as insurgents and, after Arellano
persuaded Aguinaldo to surrender in March 1901, as common crimi-
nals. Until Miguel Malvar, the last Revolutionary General, surrendered
in April 1902, political expression was heavily restricted, the press, cen-
sored, and independence advocacy, criminalized.46 Those who clung to
the dream of Philippine independence laid low and bided their time; the
incorrigibles were exiled to Guam. Radical underground movements led
by members of the urban middle sector were eventually broken after
relentless surveillance and repression by colonial security services.47
The consent that sustained the Insular Government’s consistency with
American democracy was severely narrowed and refined by the occupying
authorities. By confining the consenting constituency to ilustrados con-
genial to colonial rule, Americans constituted this group as the relevant
Filipino people. This conferred on them tremendous agency within the
transplanted tradition of popular sovereignty, creating for them a small
but significant opening through which to potentially subvert American
colonial rule.
Colonial Government of, for, and by the Filipino People

Before the Taft Commission set sail for the Islands, McKinley’s Instruc-
tions exhorted them to bear in mind that the government they were
establishing was “designed not for our satisfaction or for the expression
of our theoretical views, but for the happiness, peace, and prosperity of
the people of the Philippine Islands.”48 Such statements both summarize
American colonial policy and exemplify repeated efforts to distinguish
it from those pursued by monarchical imperialists, specifically Spain. As
the first American colonial executive, Taft adopted as his slogan, “the
Philippines for the Filipinos.” Reminiscent of the Gettysburg Address’s
“government of the people, by the people, for the people,” Taft’s motto
claimed that American colonialism, like American government, would
be of, for, and, eventually, by the Filipino people. That is, the Insular
Government would be “of” and “by the people” in being representative
and “for the people” in governing efficiently and safeguarding against
despotism.
Creating capacity served as both the goal of colonial government and
the standard for determining the degree and pace of Filipino participa-
tion in this regime. This yardstick was both enabling and disabling, for
American officials employed it to balance their desire to preserve Filipino
consent with their need to retain control in the face of constant Filipino
pressure to increase their role in government. Capacity also defined the
criteria for admission into the training program. Formulated in neutral
terms like property and literacy, qualifications for entry facilitated the
selection of cooperative ilustrados best able to fulfill them, giving them a
significant head start in the early years of the new order.
Popular and Representative

Informed by the foundational role of New England town governments
in the development of American democracy, the Philippine Commission
found in barrios similar potential for incubating Filipino democracy and
earmarked municipal governments as the key units in Filipino political
education.49 But rather than duplicate New England towns all over the
Islands, American army officers outfitted this Spanish vehicle for their
purposes, once again with ilustrado assistance. Chief Justice Arellano
and Attorney General Florentino Torres joined three American army
officers in an advisory board that drafted a statute based “to a consid-
erable degree” on the Spanish-era Maura Law.50 Prominent ilustrados
also traveled to pacified regions with the Philippine Commission to set
up local governments.51
Americans eliminated what impressed them as the biggest obstacle to
political education in Spanish towns: the ubiquitous presence of the parish
priest. Personifying both religious and political authority, the parish priest
was intended only to conduct inspections and render advice, but in reality
was a petty tyrant who intervened in practically all public functions,

such as nominations and elections as well as decisions about revenues,
expenditures, accounts, and public works. Aware that hatred for friars
had ignited the reform movement and ultimately the Revolution, the
Philippine Commission stripped the parish priest of any role in secular
government.
The Schurman Commission also criticized the limited scope of suffrage
under Spanish rule. Of eight structural defects identified in the Spanish
scheme, it named as the third most prominent “the absence of representa-
tive institutions in which the Filipinos might make their needs and desires
known.”52 Like officers of the English East India Company, Spanish colo-
nial officials seemed primarily interested in collecting revenue rather than
training natives for self-government. Thus, they restricted the franchise
to a select group of native elites called the principalia. Initially composed
of traditional native leaders, this group later encompassed previous and
current officeholders and those paying a certain minimum in land taxes.
The principalia could not directly elect officeholders, but could only rec-
ommend candidates for various posts in barrios and towns from whom
the Spanish provincial governor made his appointments.53 But despite
denigrating the restricted franchise under Spanish rule, American criteria
were equally elitist. Retaining prior officeholding and adding property
qualifications and Spanish or English literacy to the voting criteria,54 the
new Municipal Code made both status and property the basis of suffrage
and created what Cullinane terms an “expanded principalia.”55
Constituting essentially the same municipal electoral base, Americans
restored virtually the same elite families to their previous roles. Under
Spain, the principalia channeled government patronage: they conferred
government privileges, such as licenses and permits, and exacted or
granted exemptions from government obligations, like tributes and forced
labor. Institutionalizing the socio-economic role of provincial ilustrados
translated to political dominance, which further consolidated their eco-
nomic and social dominance. Historian John Larkin delineates how prin-
cipalia in the major sugar-producing province of Pampanga used their
monopoly over tax collection and forced labor “to reduce the population
to share tenants working on lands controlled by the elite,” such that “a
two-class society, made up of those in charge who monopolized positions
and wealth and those who furnished labor for principalia and colonial
needs, gradually replaced the more complicated pre-Hispanic society with
its variations of class, rank, and labor obligations.”56 As long as the colo-
nial government was guaranteed taxes and services, Spanish authorities
acquiesced to and perpetuated arrangements that allowed native leaders

“to control the means of supply.”57 These arrangements carried over to
American rule when elections were introduced. Inattentive to how and
why natives qualified, suffrage requirements were likewise indifferent
to the motivations that drove voting choices. Lande’s study thus suggests
that the vote became just another commodity with which to transact in the
reciprocal exchanges of the patron-client dyads that ordered Philippine
social relations.58
Americans complemented the horizontal expansion of the electoral
base with the vertical extension of offices for which Filipinos could run.
Under Spain, Filipinos could serve only on the lowest rungs of local
government – as cabeza de barangay (sitio or ward chief), gobernadorcillo
(the municipal or town mayor), and municipal tribunal member. As early
as March 1900, the American military government held elections to fill
these positions in the reorganized municipalities. In 1906, Filipinos ran for
provincial governor for the first time. Until the Philippine Commonwealth
in 1935, the highest elective positions available to Filipinos were those in
the Insular Legislature, which, together with the Governor-General and
the Supreme Court, constituted the top three branches of the colony’s
central government. Beginning 1907, natives could vie for seats in the
unicameral lower house called the Philippine Assembly, and by 1916, for
seats in both houses of the bicameral legislature.
As an incubator of democracy, however, barrios enjoyed nowhere near
the same autonomy as their New England counterparts. For one thing, the
legal existence of local units depended entirely on the Philippine Com-
mission, which decided whether areas had become sufficiently pacified
to be organized under the provincial and municipal government codes.
At any time, however, the Commission could shift local governments
from civil to military rule59 and vice versa,60 and reconfigure provincial
and municipal boundaries,61 as circumstances necessitated. Significantly,
the Commission reserved a sizable chunk of the Philippine population
and geography from those potentially subject to Filipino governance. It
retained under its exclusive control and jurisdiction62 the non-Christian
regions of Mindanao and Benguet,63 which was home to approximately
2,000,000 people and comprised more than a third of the total Philippine
land area.
The Philippine Commission also determined local government policy,
deciding the kinds of measures that local government legislatures could
enact. Because the provincial and municipal government codes were in the
nature of general incorporation statutes, local government units had to
trace their authority to act to one of these codes’ provisions. If the codes
were silent, then the Commission had to pass special laws authorizing
specific undertakings, such as, appropriating provincial funds to suppress
epidemic diseases64 or to purchase draft animals for breeding purposes.65
Also under Manila’s control were local government revenues and financ-
ing. Although the Commission had originally intended to make local
governments financially self-sufficient through revenues collected from
property taxation, its failure to pass an internal revenue measure caused
it to allocate a greater portion of property tax revenues to Manila than
planned. Despite finding other sources of revenue, the central government
essentially preserved this arrangement throughout the American colonial
period.66
Even more important, the Philippine Commission basically retained
and elaborated on the channels of authority through which Manila had
overseen the activities of local government units under Spain. Whereas
American towns enjoyed comparatively greater local autonomy, Filipino
barrios served more as conduits of the colonial executive’s authority
as the smallest and most remote units of the unified Spanish adminis-
trative structure.67 Provincial councils closely inspected municipal gov-
ernment work, such as exacting tax, tribute, and labor; administering
justice; and local defense. These councils, however, had no authority
over provincial affairs, but merely assisted and advised the provincial
governors. Called alcaldes mayores, provincial executives were miniature
Governors-General within their respective jurisdictions, exercising therein
their superior’s vast powers. In turn, local officials generally answered
to the Directorate General of Civil Administration, which fell under a
branch called Gobernacion y Fomento that was one of four overseen
by the Governor-General. But they also reported to officers from agen-
cies belonging to the other three branches whose functions they carried
out at the local level. These branches were the Hacienda for finance, the
Armed Forces, and Grace and Justice, which were also subject, though not
exclusively, to the Governor-General. By taking over the Spanish colonial
apparatus, the Philippine Commission preserved the central administra-
tion’s tremendous degree of structural and personal control over barrios
(see Figure 2.1).
Under American rule, Filipino municipal officers were also closely
monitored by their provincial superiors – this time, in the form of a three-
man provincial board composed of the provincial governor, a supervisor
or provincial engineer, and a provincial treasurer, who was appointed by
the Governor-General. The historian Frank Golay writes that the “key
54
Governor-General Archbishop
Armed Forces Gobernación y Fomento Hacienda Provincials Grace and Justice
Army Director of Civil Administration

Church Audiencia
(Bishoprics) (Court)
Provincial Governor - sole governor
Provincial Councils (9 members total)
- advisory and inspection
Secretary Oficiall de Gobierno
Office of Provincial Chief Military Provincial Councils Alcalde

(Central Agency Reps) Guardia Civil - Inspect Municipal Treasuries Priest
(Judge of First Instance)
Public Instruction - Attorney-General
Agriculture - Provincial Treasury
Public Health - Foreign Vicar (usually Parish Priest)
Local Branch-Hacienda or Ecclesiastical Judge
Municipal Captain (Gobernadorcillo), who headss

Priest Principalía
nts
Municipal Tribunals or Councils, with 4 lieutenants
(native electors)
Municipal Counterparts Cuadrilleros Public Works Taxation Administrative Justice of the Peace
of Central Agencies (rural police) - Lieutenant Mayor Functionaries
- Lieutenant of Police
- Lieutenant of Fields
- Lieutenant of Livestock
Cabezas de Barangay
figure 2.1 Local civil government under Spanish rule, as of 1898, highlighting tax, education, policing functions
and offices open to Filipinos. Simplified chart drawn from Schurman Commission Report, supplemented by
Robles.
supervisor” in this triad was the treasurer, who was “almost always an
American” and “maintained close scrutiny over the revenues and expen-
ditures of the municipalities making up his province.” Atop this hierar-
chy was the Executive Bureau, which Governor-General Taft created to
directly administer local governments; this Bureau recalls the Spanish-
era Directorate General for Civil Administration. Finally, central control
manifested itself in the presence of local representatives designated by the
different bureaus of the Insular Government68 (see Figure 2.2).
The Philippine Commission rationalized tight supervision thus: “the
only possible method of instructing the Filipino people in methods of free
institutions and self-government is to make a government partly of Amer-
icans and partly of Filipinos, giving the Americans the ultimate control
for some time to come.”69 Moreover, such close oversight was portrayed
as compatible with Filipino expectations shaped under Spanish rule and
thus enjoying their assent. “Even in local affairs,” the Schurman Commis-
sion observed, “it is not an absolute but qualified home rule they desire,”
as Filipinos continued to “look for supervision and regulation from the
central government at Manila.” Seen as meeting both American objectives
and Filipino expectations, Manila’s “absolutely essential” inspection of
and control over local government would make it safe as well as “expe-
dient and desirable to grant to the inhabitants of the archipelago a large
measure of home rule in local affairs,” such that “their towns should
enjoy substantially the same rights, privileges, and immunities of towns
in one of the Territories of the United States.”70
Good Government and the Merit System

Filipinos were also appointed to posts in the insular bureaucracy. Until
1916, the highest available appointive positions were the three Filipino
seats in the Philippine Commission, which functioned as both cabinet
and legislature until 1907. As cabinet members, Commissioners ran the
different executive departments under whose agencies and bureaus eligi-
ble Filipinos could serve. Through this machinery, Americans would give
Filipinos hands-on training in the art and science of modern government.
Progressivism imbued influential American colonial actors, both in
Washington and Manila.71 It was thus taken for granted that “of course
the merit or business system must be adopted” in the Islands. Consid-
ered one of the hallmarks of the modern and progressive state, the civil
service system was characterized by political neutrality; tenure in office;
recruitment based on special training and examinations; and uniform
rules of promotion, discipline, remuneration, and retirement. With the
56
Government of the Philippine

Islands
Philippine Commission (8) - Executive and Legislative Supreme Court (7)

Governor-General (President of Commission) Chief Justice
5 Americans (including Governor-General) Associate Justices
3 Filipinos 4 Americans, 2 Filipinos
Executive Departments
Office of the Interior Commerce Finance Public Instruction

Governor-General and Police and Justice (American)
Executive Bureau
Provincial Government
Provincial Representatives Provincial Provincial Board Court of First Instance

of Central Agencies Governor Provincial Governor Judge
Supervisor/Provincial Engineer
Provincial Treasurer (American)
Municipal Government
Municipal Representatives Municipal Governor Municipal Board Justice of the Peace

of Central Agencies
figure 2.2 Simplified Chart of Local Government under US Rule, as of 1901 – highlighting
positions open to Filipinos.
American spoils system and civil service reform in the background,72

the investigative Schurman Commission was alert to the inefficiency and
extravagance of the Spanish colonial bureaucracy, where “revenues were
swallowed up by salaries” and it seemed “as though the great trust of
government had been perverted into a mere instrument for the benefit
of the governing class at the expense of their subjects.” Given this track
record, failure to adopt the civil service system would, in the Schurman
Commission’s view, “prove absolutely fatal to good government in this
new Oriental territory,”73 and foredoom the enterprise “to humiliating
failure,” in the words of the Taft Commission.74 Yet Golay observes
that notwithstanding confidence in the superiority of their institutions,
American colonial officials “found no occasion to revolutionize the colo-
nial government inherited from Spain”75 but once again took it over and
operated it according to the principles of “good government.”
Although much maligned by Americans, the Spanish colonial appara-
tus had in truth been evolving toward greater efficiency. Eliodoro Robles
traces to a series of reforms instituted in Spain for the home and colo-
nial governments three major phases of institutional transformation.
The first phase spanned 1600–1800, the second, from 1800–1860, and
the last, from 1860–1898. From a rudimentary structure that oversaw
military, justice, finance, and administrative operations in the 1600s,
Spanish administration in the Islands mushroomed into five general divi-
sions and eighteen subdivisions by the early 1800s. Its increased size and
complexity reflected the multiple activities that the bureaucracy under-
took to regulate, such as public works, public health, education, scientific
exploration of resources, and economic activity, most significantly, the
Manila-Acapulco Galleon Trade that was the lifeblood of the colony. But
by 1860, the sprawling bureaucracy was streamlined down to four main
branches, though retaining multiple advisory and consultative bodies with
interdepartmental membership that performed redundant and competing
functions76 (see Figure 2.3). One example is the Junta de Jefes, or Coun-
cil of Chiefs, which consisted of the heads of multiple offices under the
central government’s four main branches. An advisory body under Gob-
ernacion y Fomento, it also oversaw the collection of taxes and imposts
and supervised the Tribunal of Accounts, the General Treasury, the Mint,
and the Office of the Paymaster General for the Hacienda. Throughout
this institutional evolution, however, administrative control converged
in the Governor and Captain-General as political and military head of
the colony. This design facilitated a form of “militarized politics” that
Lauren Benton finds characteristic of Spain’s “island imperial enclaves,”
58
Spanish King
Ministerio de Ultramar
Governor-General Archbishop of Manila
Consejo de Administración Boards of Authority (Security Council) Heads of Provincial Orders

Heads of Branches* Heads of Branches*
Archbishop of Manila* Archbishop of Manila*
Pres. Tribunal of Accounts*
Segundo Cabo of Army*
Chamber of Commerce
Royal Economic Society
Gobierno Hacienda Contencioso

Director of Civil Administration* Intendant General* Pres. Audiencia*
Branches
Gobernación y Fomento Hacienda Armed Forces Grace and Justice

(1) Directorate of Civil Administration* (1) Tribunal of Accounts* (1) Army-Segundo Cabo (1) Audiencia
supervises local governments (a) Sub-Inspection (a) Criminal (b) Civil
(2) Field Agencies (2) Intendant General* - Guardia Civil Salas heard appeals from
includes Mines, Montes, Public Health, Public Boards - Carabineros - Regular Jurisdiction Courts
Works, Agriculture and Commerce, - Junta de Almonedas* - Infantry - Regional Audiencia
Communication, Public Instruction, Charities, - Junta de Aranceles - Cavalry - Local Government Courts
Meteorology - Sub-Intendant (b) Inspección General - Navy and Military Courts
(3) Advisory and Consultative Bodies (a) Secretariat - Artillery - Ecclesiastical Courts
(a) Departmental (b) Junta de Jefes* - Engineering - Bienes Difuntos
- Junta de Almonedas* (sales, auctions) (c) Consultoria
- Junta de Jefes (Council of Chiefs)* (d) Inspección General de (2) Navy (2) Church
(b) Superior (interdepartmental membership) Hacienda (a) Cabildo
- Vaccination Council - Direct/Indirect Imports (b) Commissary General
- Council of Public Health - Int. Gen. de Estado (c) Secretariat
- Council of Public Instruction - General Treasury (d) Royal Chaplain
- Council of Agric, Industry, Commerce - Mint (e) Bishoprics-Ecclesiastical Courts
- Patents and Franchises - Paymaster General (f) Charity
(4) Independent Agencies - Education
e.g., Pawn Shop, Savings Bank, Commerce, - Social Service
Statistics, Navigation
figure 2.3 Simplified Chart of Central Government under Spanish Rule, as of 1898, highlighting overlapping
functions∗ (gleaned from Robles and Cullinane). Note that while peninsular Spaniards monopolized highest
levels, Filipinos were employed as personnel (clerks, notaries, secretaries, registered lawyers, etc.) in all areas of
colonial administration. The most prominent Filipinos, however, were able to secure appointments as judges of
the courts of first instance.
like Cuba and Puerto Rico. For in colonies with questionable loyalties,
“Spanish liberals’ goal of separating military and political power was
viewed as unworkable.”77
American military and civil authorities continued to reorganize and
simplify Spain’s colonial bureaucracy by eliminating bodies, which, like
the Junta de Jefes, had overlapping and competing functions. The Philip-
pine Commission renamed its four departments, calling them Interior,
Commerce and Police, Finance and Justice, and Public Instruction,78 and
appointed Commissioners as Department Secretaries, who reported to the
Governor-General (Figure 2.4). The result was an Americanized Span-
ish bureaucracy that was relatively more developed than its American
state and federal counterparts. Political scientist Stephen Skowronek calls
the late nineteenth-century American administrative apparatus a “patch-
work state,” because it was a loose organization whose operations were
manned and harmonized by political parties and whose internal dynamic
and scope of activities were delineated by common law courts.79 In a
1916 American Historical Review article, American insular official David
P. Barrows described “Philippine administration in American hands”
as “unified, centralized, and made responsible to the chief executive of
the archipelago.” With “administrative control upon a single executive
head,” the Philippine Governor-General differed from US state and ter-
ritorial governors, who were neither the sole administrative heads nor
the “centre of communication between all departments of the federal and
local governments.”80 By adopting Spanish governmental organization,
the Insular Government departed from mainland parallels and assumed
a bureaucratic character from its inception. Intact throughout American
colonial rule, this Spanish command structure constituted the American
Governor-General as the unrivaled head of colonial administration whose
reach extended to the smallest, remotest barrios.
To prevent patronage from infesting their bureaucratic showcase,
Americans instituted competitive examinations and defined “merit and
fitness” primarily in terms of educational qualifications, namely, Spanish
or English literacy, and a post’s technical requirements. Conceiving of
the insular civil service as both classroom and curriculum for good gov-
ernment, Governor-General W. Cameron Forbes predicated “a complete
and general Filipinization of the service” on “the slow work of educa-
tion,” proceeding “from the bottom up – that is, by promotion from
the lower positions as a result of proved efficiency.”81 Thus, the merit
system’s neutral criteria and hierarchically staged program for selection
and promotion were deployed to manage the politically volatile strategy
60
Government of the Philippine Islands
Philippine Commission - Executive and Legislative Supreme Court

8 members 7 members
Governor-General (President of Commission) Chief Justice
5 Americans (including Governor-General), 3 Filipinos Associate Justices - 4 Americans, 2 Filipinos
Executive Departments (in theory, other departments were open to Filipinos) Legislature
Office of the Interior Commerce Finance Public Instruction Legislative Committees

Governor-General and Police and Justice (American) 3 members, with at least one American
Bureaus (heads were, in theory. open to Filipinos)
Executive Bureau Health Transportation Insular Treasury Public Instruction Agriculture and Fisheries
Audits Forestry Post Office Insular Auditor Public Charities/ Appropriations
Civil Service Mining Coasts/Geodetic Customs/Immg. Libraries/Museums Banking and Currency
Agriculture Eng/PubWorks Internal Revenue Statistics City of Manila
Fisheries Prisons Cold Store/Ice Public Records Commerce
Weather Lighthouses Banks/Currency Public Printing Franchises and Corporations
Non-Christians Railroads Justice Public Architecture/ Health
Public Lands Corporations Buildings Judiciary
Govt Labs (exc. Banks) Municipal and Provincial Governments
Patents/ Non-Christian Tribes
Copyrights Police and Prisons
Printing
Public Instruction
Public Lands, Mining and Forestry
Taxation and Revenue
figure 2.4 Simplified Chart of Central Government under US Rule, as of 1901 – highlighting positions open to
Filipinos.
for calibrating the nature and level of Filipino participation in colonial

government.
Intended to train all qualified natives, the Insular Government was for
some time dominated by ilustrados. For in a population where only 10
percent knew Spanish and far fewer knew English, the criteria for “merit
and fitness” set a high bar, effectively limiting candidates to ilustra-
dos. Further winnowing this small pool was the Civil Service Board’s
stated preference for English literacy, since “American progressive busi-
ness methods, the genius and spirit of American civil government, and the
ruggedness and strength of the American (English) language are insepa-
rable.”82 Sixty percent of the candidates failed the 1901 examinations,
and by 1913, only four out of thirteen bureau directors were Filipino.83
Ilustrado dominance, however, was meant to be temporary. Ameri-
cans envisioned education as the means for democratizing, not just Fil-
ipino government, but society in general. But as Chapter 5 mentions,
public education under American rule benefited elites primarily. For one,
concern for quality impelled limited distribution of schools, inadvertently
creating an elitist educational system. For another, only children of means
could be spared from fieldwork to attend school long enough to com-
plete the primary level, much more the secondary and tertiary levels.84
Yet complaints about the insular service revolved less around its elitist
character than around the American monopoly over positions85 and the
disparity between American and Filipino salaries for the same positions.
Regardless of these considerations and the circumstances by which he
qualified, a native in government still represented the Filipino people,
his performance exemplifying both his people’s increasing capacity for
self-government and the progress of Filipinization under American rule.
Finally, despite their aversion to perpetuating patronage in the Islands,
Governor-General Taft and the Philippine Commission rewarded loyal
ilustrados with both social and official preferment. Apart from accrediting
only the Manila ilustrados’ Partido Federal, Taft acknowledged their role
as “one of the great elements in bringing about pacification” by rewarding
Federalistas with Insular Government appointments. He felt that “if a
man was in the Federal Party it was fairly good evidence that he was
interested in the government which we were establishing, and would do
as well as he could.”86 Provincial elites thus flocked to the Partido Federal
to secure jobs in the provincial government and in the local branches of
insular offices.87 Consequently, the American-sanctioned Partido Federal
became the most important conduit of political patronage in the early
years of American civil rule.88 By contrast, non-Federalista ilustrados
were barred not only from organizing political parties, but also from
appointments.
Not Despotic
Above all, what would make the Insular Government cohere with both
American ideals and Filipino aspirations was that it would be governed
by American rule of law principles. For along with friar oppression,
Spain’s persecution of political dissidents greatly embittered Filipinos.
Revolutionaries and reformers alike bristled at fresh memories of the
ruthlessness by which the Spanish colonial government had censored the
writings and confiscated the property of its political enemies and arrested,
tried, convicted, deported, and executed filibusteros. Just as McKinley’s
Senate allies had reassured the American public that American colonial-
ism would respect the rights of the colonized, American colonial officials
promised Filipinos the substance of their constitutional protections.
From the earliest days of occupation, military proclamations guaran-
teed the property and personal rights of Filipinos. But the most extensive
and legally binding set of commitments came via McKinley’s Instruc-
tions, which in 1900 established the institutional foundations for civil
rule as the colony’s first organic law. Although it allowed the Taft
Commission to tailor American ideas and institutions to fit the “many
different degrees of civilization and varieties of custom and capacity” in
the Islands,89 this directive nonetheless laid down some non-negotiables,
to wit, “certain great principles of government which have been made
the basis of our governmental system” and “essential to the rule of law
and the maintenance of individual freedom.”90 Secretary Root identi-
fied one set of principles as emanating from the Bill of Rights. Thus,
McKinley’s Instructions and subsequently the Philippine Organic Act of
1902 and the Philippine Autonomy Act of 1916 extended to the Islands
the substance of Bill of Rights guarantees, except the right to bear arms
and to jury trials. A second set came from the theory of separation of
powers that distributed power among the executive, legislative, and judi-
cial departments. This central tenet of the American constitutional creed
was originally understood as a functional division of labor, but later
assumed the Newtonian-like notion of checks and balances where inter-
departmental competition kept each branch vigilant and prevented any
one from becoming despotic. But more fundamentally, the departmental
design incarnated the American commitment to the rule of law that barred
one who would rule legitimately from judging his own acts91 and made
limited government mechanically literal. Such understandings informed
Root’s conviction that “a fundamental step in giving the substance of

civil government” to the people of the Islands was to have the “executive,
the legislative, and the judicial powers be exercised by different persons
throughout the pacified territory.” Owing to the US president’s “absolute
and supreme”92 authority as commander-in-chief, the Military Governor
as his agent could exert in a single order “all three of these different
powers – the exercise of legislative power by provisions prescribing a rule
of action, of judicial power by determinations of right, and of executive
power by the enforcement of the rules prescribed and the rights deter-
mined.” Thus, Root was keen to break up the concentrated powers that
consolidated those enjoyed by the Military Governor’s Spanish predeces-
sor and represented “the chief objection to any unnecessary continuation
of military government.”93
Separation got under way when the Military Governor’s judicial
authority was terminated with the revival of native courts in August
1898. The Military Governor’s legislative functions were transferred to
the Taft Commission when it arrived in mid-1900. After Aguinaldo’s
surrender, President McKinley relieved the Military Governor of his civil
duties by July 4, 1901, and assigned his executive authority to Taft as
Civil Governor, later Governor-General.94 Heralding the advent of civil-
ian rule was the adoption of the American territorial government form.
After scrutinizing British colonial vehicles, Root determined that this
homegrown template, which prepared territories and their inhabitants for
membership in the Union of self-governing states, was equally suited to
effectively administering a non-white race while training them for inde-
pendence.95 As with territorial governments, the Insular Government’s
executive power was vested in the governor, its judicial power, in the
courts, and its legislative functions, shared by both the governor and
the Philippine Commission, a legislative council of which Taft remained
president. Composed of five Americans and three Filipinos, the appointive
Commission also partook in both legislative and executive functions as
the Governor-General’s cabinet and the Insular Legislature from 1901 to
1907.
Recombining the executive and legislative functions that Root had
previously disentangled from the Military Governor under military rule,
this arrangement was not meant to be permanent, for the territorial
government phase represented only the first stage in the Insular Gov-
ernment’s structural evolution. Beginning in 1902, the US Congress
would increasingly extricate law-making from the Commission and assign
this function to an exclusively legislative body, which was progressively
identified as Filipino. Through the 1902 Philippine Organic Act, Congress

would create a bicameral legislature with an elective Filipino-controlled
Philippine Assembly as the lower house and the Commission as its upper
house. The 1916 Philippine Autonomy Act would finally constitute the
Insular Legislature as an all-Filipino branch by abolishing the Philip-
pine Commission as the Insular Legislature’s upper house and replacing
it with a Philippine Senate.96 For the moment, however, the Philippine
Commission would be a hybrid executive-legislative body through which
Filipinos would acquire first-hand experience in enacting laws and admin-
istering the machinery of government under the watchful eyes of Amer-
ican Commissioners. First seen in the reconstituted local governments,
this pattern of pairing Filipino trainees with American supervisors was
replicated through all levels and all branches of the Insular Govern-
ment and was thought to remedy Spain’s racially exclusive policy in the
upper reaches of its colonial government that had previously frustrated
ilustrados.
The Commission’s design also conformed to the broader pattern of
American colonial state-building in the Islands – that of resurrecting Span-
ish templates. For while derived from the American territorial government
model, the hybrid council once again recalled the Spanish colonial gov-
ernment structure onto which it was grafted. Under Spain, the Spanish
Governor-General had served as highest colonial officer and president of
a body called the Audiencia. Although it had become the highest colonial
court by the 1890s, the Audiencia did not start out as a purely judicial
body. Created by Spanish colonial authorities in the 1560s, it was meant
to work in concert with the Governor-General and check the abuse that
resulted from his having initially performed all government functions
in the earliest years of Spanish rule. Thus, Audiencia members, called
oidores, performed administrative and executive duties, resolved disputes,
and passed colonial decrees. Performing a similar role in colonial finance
but ultimately accountable to the Governor-General was the Hacienda.
Replicated throughout the administrative hierarchy, these overlapping
spheres of jurisdiction were what American military and civil officials
tried to unravel when they streamlined the Spanish colonial adminis-
trative structure. Like the American separation of powers principle, the
Spanish scheme was meant to control abuse of office by competition, but
created checks and balances, not by separating functions, but by creating
offices that enjoyed executive, legislative, and judicial authority over the
same areas. In other words, instead of relying on the competition created
by “mechanical devices and institutional contrivances”97 following the
American departmental theory, the Spanish model depended instead on

competition among individuals with shared authority.
But parallel offices performing the same functions for the Spanish colo-
nial government did not mean they shared the same measure of power.
In Madrid as in Manila and her sister colonial capitals, the background
assumption was the executive supremacy of an absolute monarchy. For
while the Spanish apparatus had become more functionally specialized
with the creation of separate offices, power was channeled to the Spanish
King’s direct delegate, the Governor and Captain-General. The Governor-
General’s work, in turn, was overseen and directed by the king’s Council
of the Indies, later the Ministry of Ultramar, which formulated colonial
policy with the help of advisory bodies created for each of the colonies.
Serving as chief of colonial administration as well as head of military and
naval forces, the Governor-General was virtually a colonial monarch.
This insular configuration, in turn, reflected and evoked the centralization
and concentration of power in the Spanish King, who was the ultimate
authority over Spain and her colonies. With the help of the Cortes, which
exercised legislative functions, the Spanish monarch made laws for the
colonies. Assisted by bodies of advisors formed for each of the colonies,
the king’s Council of the Indies, which became the Ministry of Ultramar,
oversaw and directed colonial administration through royal orders issued
to the Governors-General98 (see Figure 2.3).
Similarly, the hybrid nature of the Philippine Commission did not mean
that the power was distributed evenly among the American Governor-
General and Commission members. Not only did he have a hand in colo-
nial legislation, but the Governor-General also became the unrivaled head
of colonial administration with the transfer to his office of the Military
Governor’s executive authority. In other words, the American Governor-
General enjoyed the same measure of control over the Insular Government
bureaucracy as that wielded by the Spanish Governor-General over his
administration. In exercising both executive and legislative powers and
controlling the insular administrative bureaucracy and armed forces, the
American colonial executive enjoyed his Spanish precursor’s “boundless
and autocratic powers,”99 which the Schurman Commission had iden-
tified as a major flaw of Spanish colonial government for contravening
American separation of powers theory.
It was in this structurally and culturally blended institutional terrain
that constitutional limitations would be invoked, interpreted, and incar-
nated. But to assess whether these protections would effectively curb the
despotic capacity of America’s colonial vehicles, it is necessary to first
determine whether and in what fashion the US Constitution applied to

America’s insular acquisitions. For despite adopting the territorial gov-
ernment form for the Islands, it was always clear that the colony was
not destined for statehood and that its status and thus its relationship to
both the United States and the US Constitution were yet unclear. It is to
the settlement of these constitutional questions that the following chapter
turns.
Conclusion
In the process of constructing the American colonial state, the rhetoric of
benevolent imperialism confronted colonial reality and gave form to its
latent contradiction. Pressure in the US mainland and in the Islands had
impelled portraying American colonialism as a program for creating a
Filipino people qualified for sovereignty by and through a representative,
progressive, and limited colonial government. Yet the need to immedi-
ately reestablish civil government after the American occupation resulted
in renovating preexisting Spanish government vehicles, rather than con-
structing specifically American templates for governance, and in enlisting
the most able and congenial elites to run the inherited apparatus and
thereby train them in self-rule.
Adopting a structure that concentrated authority in the colonial
executive afforded benevolent imperialists the control necessary to train
their native wards, but would undermine the much-vaunted protections of
limited government. Beyond its structure, however, an even more basic
contradiction marred the American colonial program that early state-
building evidenced – that between tutelage in democracy and the practice
of democracy. Premised on inequality, tutelage orients pupils toward ful-
filling the requirements of and extracting privileges from an instructor
who wields all power and control and thus seems ill-suited to fostering
the independent judgment and action that characterize meaningful self-
government. Thus, training in democratic self-government would rein-
force long-standing clientelist relations in Philippine society, bolstering
the position of native elites best equipped to master the game.
3
Foreign in a Domestic Sense
Organic Sovereignty, Unincorporated

Territories, and the Insular Doctrine
When anti-imperialists warned that empire endangered American demo-

cracy, Secretary of War Elihu Root dismissed their rhetoric as “one of
the cheapest and most threadbare of a demagogue’s stock.” The architect
of American colonial rule was confident that “the Government of the
Philippine Islands will not affect the character of our institutions, but the
character of our institutions will determine and mould the Government of
the Philippine Islands.”1 In turn, what molded the character of American
institutions – and her colonialism by extension – were the political and
legal principles enshrined in the US Constitution.
Root’s optimism reflected the faith shared by nineteenth-century Amer-
ican legal elites in their rule of law regime. Given its best known formu-
lation by British constitutional expert Albert Venn Dicey, the American
conception of the rule of law had three core principles, the most perti-
nent to this study being, “the supremacy of law over arbitrary power.”2
Through the Instructions he prepared for the Philippine Commission,
Root subjected colonial governance to the substantive and structural
restrictions of the US Constitution, adopting Bill of Rights guarantees
and the departmental structure for the Government of the Philippine
Islands.
Root’s assurances, however, obscured a fundamental question – did
the US Constitution even apply to the Islands? He conceded that there
was nothing “in the exact words of the Constitution as to what we
can do in a colony.”3 Constitutional silence, coupled with colonialism’s
incompatibility with democracy, sufficed to disqualify the venture in
anti-imperialist eyes. Nonetheless, Root’s 1899 Secretary of War Report
categorically assumed “that all acquisition of territory under this treaty
67
68 Foreign in a Domestic Sense
was the exercise of a power which belonged to the United States, because
it was a nation, and for that reason was endowed with the power essen-
tial to national life.”4 Root regarded the power to acquire territory as
inherent in sovereignty, rather than granted by the Constitution. Simi-
larly unwritten were protections against the potential for abuse. Thus,
even if “a grammatical construction of the Constitution shows that the
limitations apply to States and not to the Federal Government,” safety
lay in Americans having recognized that “there are general principles
that apply to all mankind, and we had to govern according to them,”5 be
they in the United States or in its territories, whether or not designated
for statehood. With these understandings, he proceeded to establish the
apparatus for colonial governance.
But Root’s interpretation was an argument rather than established
doctrine. For the debates surrounding the constitutionality of imperial-
ism pitted against each other two long-standing, competing visions of
the nature and extent of American power. One viewed this power as
created and limited by the US Constitution, and the other, as essential
to sovereignty and therefore unbounded. To assert that the Constitution
“followed the flag” and governed the United States at all times and in
all places affirmed America’s identity as a polity ruled by law; to deny it
seemed to negate this self-image. Focusing on two seminal sets of texts,
namely, five Harvard Law Review articles published during Senate delib-
erations over the 1898 Treaty of Paris and the 1901 Supreme Court
decision Downes v. Bidwell, the most important of the so-called “Insu-
lar Cases,” this chapter traces the emergence of a compromise embodied
in a new territorial category – the unincorporated territory – where the
United States exercised a more expansive organic authority and where
constitutional principles embodying the American rule of law exerted
moral rather than legal force. Committed to restraining power by law,
this iteration of the rule of law seemed instead to unencumber the rule of
man in the Islands. Early in the colonial encounter, the American insti-
tutions that Root expected would mold her Pacific colony were already
being transformed.
The Constitution and Colonialism

Searching for an instrument appropriate to American colonial goals,
Secretary Root and the Schurman Commission had first perused British
colonial models before selecting the American territorial government
form. That monarchical templates could fit within the world carved out by
The Constitution and Colonialism 69
the US Constitution betokened an expansive notion of US constitutional

prerogatives. For anti-imperialists, however, the US Constitution was
not only silent regarding colonies, but its design and purpose also rele-
gated territories to serving as a stage preparatory to joining the Union
that it established. While espousing divergent interpretations, imperialists
and anti-imperialists alike agreed that colonialism’s compatibility with
American tradition was inextricable from congruence with the US Consti-
tution. Both tangible repository and blueprint for American republi-
canism, the US Constitution was the primary, concrete yardstick by which
was measured coherence with the American tradition that created it.
Consistent meant constitutional, legitimate also meant legal – and thus
governed by the rule of law.
Far from settled, the constitutional question was nonetheless so
fundamental to the colonial enterprise that it was debated almost every-
where by civic and political leaders with official, popular, and academic
reputations. Among those who “weighed in with views on the consti-
tutional dilemma presented by the newly acquired territories and their
inhabitants” were former US President Benjamin Harrison, the future
presidents of Harvard University and the University of Chicago, plus
prominent professors, deans, judges, and attorneys. To legal scholars
Christina Duffy-Burnett and Burke Marshall, the stature of these partic-
ipants “suggested the widespread recognition at the time that the new
territories raised questions of profound significance for the future of the
American nation.”6
Territories and Tutelage

Evaluating four types of British colonies, the Schurman Commission
found that Britain had surrendered too much control both to domin-
ion governments, which best suited areas of white settlement, and to
protectorates, where native sovereign intermediaries needed foreign pro-
tection. Crown colonies, however, enjoyed too little autonomy, their leg-
islation and administration being imposed from Britain. More conducive
to self-government were colonies that were representative of, but not
responsible to, subjects. But the Commission still deemed heavy-handed
British control exercised through executive officers and upper houses of
colonial legislatures and in the colonial secretary’s exclusive jurisdiction
over “conflicts between the representatives of British sovereignty and the
representatives of the colonial people.” Instead, the Commission recom-
mended granting substantial internal autonomy by dividing government
functions between the sovereign power and the colony while ensuring
sovereign control by giving veto power to the governor and final dispo-
sition over local enactments “to the legislature of the sovereign power,”
which would allow colonial representation. Happily, this design reflected
what “developed substantially into the American scheme for Territo-
rial Government.”7 Similarly, after consulting numerous books detailing
“both the practice and principles of many forms of colonial government
under the English Law,” Root elected “to take the lessons we could get
from the colonial policy of other countries, especially Great Britain” and
apply these “to the peculiar situation arising from the fundamental princi-
ples of our own government, which lead to certain necessary conclusions
which don’t exist in Great Britain or Holland, notwithstanding the spirit
of liberty and freedom in both those countries.”8
By 1900, the only form of territorial government existing in the United
States was that designed by Thomas Jefferson and adopted by an 1804
congressional statute after the Louisiana Purchase. As noted, this scheme
vested executive power in the governor, legislative power in the governor
and in a legislative council composed of thirteen of the “most fit and
discreet persons of the Territory,” and judicial power in courts estab-
lished by the territorial legislature. Moreover, the statute provided for
territorial representation in Congress through two resident commission-
ers who could take part in debates, but not vote. The territorial formula,
with adjustments allowing for a larger Filipino role in government, was
thought ideal whether or not the Islands would become a state:
As Jefferson says, it is our duty to promote the happiness of ‘our new fellow
citizens’ as our own, whatever their eventual political relation to us may be; and
in planning a frame of government we can not do better than follow Jefferson’s
lead in adapting it to the condition of the natives, trusting that in the course
of development under American training they will eventually reach the goal of
complete local self-government, even though at present it may be necessary to
some extent ‘to suspend its principles,’ on account of their political inexperience,
the ignorance of the masses, and the linguistic and social diversities of the tribes
and peoples inhabiting the archipelago.9
Because McKinley’s colonial program sought to align colonial governance

with American institutions, then selecting the territorial vehicle was a
case of form following function. Originally designed to prepare territo-
ries for statehood, territorial government seemed equally congenial to
the task of training insular inhabitants for independent nationhood. For
if Congress administered the Islands like territories, then jurisprudence
suggested that it could calibrate both the character and extent of native
The Constitution and Colonialism 71
participation within the institutions that served as the classroom for colo-
nial democracy. Also capable of adjustment were the nature and strength
of native entitlements based on what best suited their level of civilization
and what was necessary to further advance them toward the liberal demo-
cratic ideal. But while functionally appropriate, could territories legally
be deployed for this purpose?
To Democratic Senator George Vest and his anti-imperialist allies, the
answer was a resounding “no.” Four days prior to the conclusion of the
Treaty of Paris, the Missouri senator filed Purpose Resolution No. 91
to preclude the McKinley administration from permanently retaining the
insular territories without promising them either statehood or indepen-
dence. Invoking Chief Justice Roger Taney’s Dred Scott opinion,10 he
contended that the US Constitution conferred no power on “the Federal
Government to acquire territory to be held and governed permanently as
colonies” and insisted that territories “must be acquired and governed
with the purpose of ultimately organizing [them] into States suitable for
admission into the Union.”11 Opposing Vest and representing the admin-
istration’s position in the Senate was Orville H. Platt, Republican from
Connecticut and author of the Platt Amendment.12 Dismissing Dred Scott
as discredited authority, Platt argued that subsequent US Supreme Court
decisions regarded the power to acquire, dispose, and govern territories
as inherent in sovereignty and limited only by treaty obligations.13 Con-
sequently, the United States could keep and govern colonies in fact, if not
in name.
Deciding what the United States could or could not do implicated
her national identity – an identity that was itself split. For while impe-
rialism was a novel issue, the debates revived an age-old rift embodied
in two schools of constitutional thought that Populist Senator William
V. Allen of Nebraska characterized as accompanying “the entire his-
tory of our Government.” Senator Allen would have subsumed Vest’s
anti-imperialist arguments under the “strict constructionist” school,
which viewed the US government as “one of delegated powers alone.”
Possessing solely powers that were expressly conferred or necessarily
implied to carry out a granted authority limited this government’s foreign
policy prerogatives to those deemed “consistent only with the primary
purpose of maintaining a government for certain well-defined territories
and well-defined inhabitants thereof and their posterity.” Pratt’s imperi-
alist stance, however, would have hewed closer to Allen’s “Hamiltonian”
pole, which regarded the Constitution as having created “a government
national in character and possessing, as respects its external relations, not

only an express but an implied authority necessary to be exercised with
foreign countries as completely and as fully as any nation of the world.”14
Whether called “strict constructionist” or “Madisonian,” on the one
hand, or “implied sovereignty” or “Hamiltonian,” on the other, the
rivalry between these two schools manifested a deeper bifurcation regard-
ing the nature and role of government in American life that had pervaded
the construction of federal power since the Republic’s founding. Here it
erupted sharply as America confronted the very real possibility of unlim-
ited sovereignty outside US borders.15 Ultimately, however, what was at
stake (and what was to break this impasse) was America’s identity as a
civilized nation that was both founded on the consent of the governed
and ruled by law.
American Democracy and the Rule of Law

For nineteenth-century Americans, law ruled through a judiciary that
enforced the divisions erected by the Constitution to diffuse power
among various actors, activities, and areas of life using a systematic
process that aspired to scientific neutrality, impartiality, and generality.
This mechanistic conception of law reflected a particular resolution to
what legal historian Morton J. Horwitz considers the central dilemma,
a “persistent theme,” and the “fundamental issue of American political
thought” – “how this most politically democratic country in the world
could avoid the threat of coerced economic equality.”16 This Whiggish
account read developments culminating in the adoption of the US Con-
stitution in 1787 as curbing the despotism peculiar to a democracy – that
posed by legislative majorities. By shifting power away from state legis-
latures to the executive and judicial branches within state governments,
as well from state governments to the federal government, the Founders
had sought to hinder legislative majorities from venting their leveling ten-
dencies through redistribution. In addition, incorporating bills of rights in
state and federal constitutions shielded from government intrusion certain
spheres of activity designated as private. Constitutional law scholar Owen
Fiss traces these constitutional divisions to a sharp distinction drawn
between society and state by the social contract theories embraced by
American political and legal elites.17 In light of renewed threats of redis-
tribution that accompanied industry-wide strikes waged during the severe
economic depression of the 1890s, developments in American politi-
cal, social, economic, and legal thought converged to “establish a sep-
arate, ‘natural’ realm of non-coercive and non-political transactions free
Severing the Constitution from the Flag 73
from the dangers of state interference and redistribution” principally by

positing “basic dichotomies between state and society, between the mar-
ket and the family, and between politics and the market.”18
Constitutional historian Gordon S. Wood explains how the Founders
undermined legislatures by severing their traditional identification with
“the people,” depicting “the people” as a single, undivided sovereign
apart from the government, and delegating portions of their sovereignty
among different levels and branches of government. Such intellectual
maneuvers “helped to foreclose the development of an American intellec-
tual tradition in which differing ideas of politics would be genuinely and
intimately related to differing social interests” and “contributed to the cre-
ation of that encompassing liberal tradition which has mitigated and often
obscured the real social antagonisms in American politics.”19 Thus it was
that abstract legal operations came to police the boundaries between the
political and the “natural,” the public and the private. But to serve this
policing function, law had to be distinguished and separated from politics,
prompting American legal thinkers to create an autonomous, abstract sci-
ence of law that demonstrated, among other things, that law was not just
another instrument of democratic politics, that legal reasoning inherently
differed from political reasoning, and that law, therefore, could serve
as “a non-political cushion or buffer between state and society.”20 This
legal science was modeled on the process of common law adjudication by
which courts derived “true law” from universal, impartial, unchanging,
autonomous, and self-generating principles of justice and moral order
embodied in fundamental law and, in so doing, facilitated the achieve-
ment of legal classicism’s highest ideal, the rule of law.21
Severing the Constitution from the Flag

Precisely how the rule of law would govern America’s imperial enter-
prise – whether and to what extent the US Constitution would be able to
do so – was unclear. Both imperialists and anti-imperialists assumed that
the Constitution extended to members of the Union for and by whom
it was organized. Designated by Fiss as the “constitutional community,”
this agglomeration of individuals was “loosely held together by a net-
work of social and economic relationships,” enjoyed “a set of natural
rights,” and both preexisted the state and created it.22 Consistent with
social contract theories, the state’s authority over this group was “consti-
tutive” or limited by the terms by which the association was formed. But
they diverged over how new acquisitions would affect this community –
Senator Allen’s Madisonians presumed that these were automatically

added to it, while his Hamiltonians did not.
But even within the United States were groups of people deemed
insufficiently capacitated and thus excluded from this constitutional com-
munity. Over African-Americans, Chinese immigrants, and women, Fiss
describes the state’s power as “organic.” Emerging “from the social rela-
tionship itself,” such as that between parents and children, this authority
“seems natural or intrinsic to it.” While morality and other external limits
bound both “constitutive” and “organic” power, the latter is not limited
“internally” to “the very reasons for which that authority created.”23 The
imperial venture provided a new occasion to clarify the nature, conditions,
and composition of membership in America’s constitutional community.
This time what required definition was not merely the status of groups
of people inhabiting the Union’s spaces, but that of these new spaces
themselves and the kind of authority – constitutive or organic – that the
United States exerted therein. Yet despite its uncertain applicability to the
territories, the rule of law shaped the decision-making process, dictating
its language, categories, and operations, and created the impression that
law, rather than raw politics, was at work – even though it worked in
this instance to limit its own reach and force.
What Are the United States?

Because membership in the Union was crucial to resolving the territo-
rial dilemma, it seems apt that the writers of the canonical articles on
this topic undertook precisely to define the “United States.” Published
between December 1898 and November 1899, during Senate delibera-
tions over the Treaty of Paris, the five groundbreaking Harvard Law
Review (HLR) articles written by constitutional law experts and legal
educators Carman Randolph, Christopher Columbus Langdell, Simeon
E. Baldwin, James Bradley Thayer, and Abbott Lawrence Lowell are
regarded as the most influential and most frequently cited of the hun-
dreds of law review pieces analyzing annexation’s legal dimension.
This series is credited with facilitating the resolution devised by the
Supreme Court, which chose neither the organic theory nor the con-
stitutive one, but combined both in “the idea of unincorporated terri-
torial status in order to enable the United States to acquire and gov-
ern its new ‘possessions’ without promising them either statehood or
independence.”24
The so-called “incorporation theory” was advanced by Supreme Court
Justice Edward Douglass White in his concurring opinion in Downes v.
Bidwell and later became the Insular Doctrine.25 Considered the most
definitive of the Insular Cases,26 Downes emerged from a constitutional
challenge to the 1900 Foraker Act, which Congress passed to organize
civil government in Puerto Rico. This organic law imposed a tariff on
goods traded between the United States and Puerto Rico at the rate of 15
percent of the amount levied on identical articles shipped from foreign
countries.27 Samuel Downes paid the duty under protest and sued George
Bidwell, the Port of New York’s collector, for recovery, arguing that the
Foraker Act violated the US Constitution’s Uniformity Clause by levying
different duties on goods coming from domestic territory. Producing five
opinions but none that garnered a majority, the Downes Court upheld
the Foraker Act by a 5–4 vote, effectively ruling that the Constitution did
not restrict congressional action in the territories. Limiting membership in
the United States, and thus the Constitution’s force, to what he identified
as incorporated territories, Justice White’s rationale gave rise to the Insu-
lar Doctrine when the Court unanimously endorsed it in the 1922 case
Balzac v. Puerto Rico.
All the writers of the HLR articles agreed that the “United States”
meant only the Union of States. Harvard Law School Dean Langdell,
legal classicism’s originator, methodically parsed the ways in which the
Constitution used the term “United States” and concluded that it referred
either to the states as a collective or to the sovereign polity in the aggre-
gate.28 But different consequences ensued from this definition, which
corresponded to the two sides of the imperialism debates.
For Randolph and Baldwin, anti-imperialism’s advocates, acquiring a
territory earmarked it for statehood. Since statehood was “the single and
conclusive mark of the ability of communities to govern themselves,”
then the conception of the American republic as a union of indepen-
dent, self-governing states “must be maintained if we are to contemplate
free institutions throughout our land.”29 That precluded permanent terri-
tories. But Thayer, who took up the imperialist cause with Langdell,
characterized as “merely a political theory” rather than a legal rule the
claim that “we can only hold territory for the purpose of nursing it
into a State,” asserting that a territory had “no right to become a State
unless it shall have been so stipulated with the former owner when ceding
it.”30
The Downes opinions also gravitated toward these two poles. Like
Langdell and Thayer, Justice Henry Billings Brown’s opinion “for the
Court” categorically stated that “the Constitution was created by the peo-
ple of the United States as a union of states” and nowhere in the nation’s
fundamental instruments could it “be inferred that the territories were

considered part of the United States.” At the other end, the dissent-
ing opinions of Justice John Marshall Harlan and Chief Justice Melville
Weston Fuller contended that annexing a territory, even without intend-
ing to grant it statehood, made it part of the United States. But these
justices marked the operative event differently: Harlan fixed incorpora-
tion “at least after the ratification of the treaty with Spain”; Fuller and
co-dissenters Justices Harlan, David Josiah Brewer, and Rufus Peckham
pegged it at the passing of the Foraker Act, which organized Puerto Rico’s
territorial government and fixed its inhabitants’ rights. Justice White split
the difference, making only territories incorporated with the intent to
confer statehood part of the United States and subject to the Constitution
and leaving those not so intended outside both the constitutional com-
munity and the Constitution’s legal, though not its moral, ambit.31 It is
the construction and justification of this compromise, and its implications
for American power and law, that this section now unpacks.
The Power to Acquire Territory

Those who excluded the territories from the United States did not pred-
icate the power to acquire them on the Constitution. Instead, Thayer
regarded “the power of acquiring colonies” as an “incident to the func-
tion of representing the whole country in dealing with other nations and
states, whether in peace or war” and that “there is no lack of power
in our nation – of legal, constitutional power, to govern these islands
as colonies, substantially as England might govern them, that we have
the same power that other nations have.”32 Thayer’s view echoed in the
HLR debates Root’s own expansive conception of US sovereignty that
informed McKinley’s benevolent imperialism and which Senator Orville
Platt advocated during the Senate ratification debates. Since the United
States, as a nation, possessed “every sovereign power not reserved in
its Constitution to the States or the people,” then Platt portrayed ter-
ritorial acquisition as “an inherent sovereign right upon which there
is no limitation and with regard to which there is no qualification.”
And while “in certain instances the right may be inferred from specific
clauses in the Constitution,” it nonetheless “exists independent of these
clauses.”33
Indeed, explicit constitutional authority for territorial acquisitions was
extremely limited. Specific provisions pertained only to territories already
in existence at the Constitution’s adoption, namely, the areas compris-
ing the Northwest Territory. President Jefferson had been aware that he
lacked express authority to acquire the Louisiana Territory from France

and thus wanted to secure a constitutional amendment to correct this
defect. While the US Senate left the issue unresolved when it ratified
the Louisiana Treaty, subsequent practice and judicial precedent con-
firmed the existence of the power. Notably, Chief Justice John Marshall
in the 1828 case American Insurance v. Canter and Justice Joseph P.
Bradley in the 1890 Mormon Church v. United States considered the
power to acquire territory implied by the power to make war and to
conclude treaties,34 which the Constitution recognized but did not cre-
ate. Reviewing territoriality jurisprudence, the justices who supported
the Downes opinion took for granted the judicial construction of this
authority.35
Those who, like Baldwin and Randolph, included territories within
the “United States” conditioned the power to acquire them on the for-
mation of new states and cited as authority Chief Justice Roger Taney’s
Dred Scott opinion, which Senator Vest had quoted in his purpose resolu-
tion. To determine whether the Missouri Compromise could validly ban
slavery from the Louisiana Territory, Taney construed Congress’s power
to make needful rules under the Territorial Clause as applicable only to
the Northwest Territory, which were the only areas encompassed by the
Constitution’s express authority to acquire territories. Because Congress’s
plenary powers under the Territorial Clause stopped at the Northwest
Territory, Congress was subject to constitutional limits with respect to
territories subsequently acquired. Thus, were Congress to deprive citizens
sojourning in the newer territories of their slaves, it would violate the Con-
stitution’s due process clauses. While American Insurance had regarded
the power to acquire territories as inherent in the power to make treaties
and wage war, Taney provided clearer textual support, deriving it from
the specifically conferred power to admit new states and categorically
rejecting the constitutionality of acquiring territories for any other pur-
pose. To Taney, statehood constituted what legal classicists termed an
“implied limitation”36 on constitutional power: “There is certainly no
power given by the Constitution to the Federal Government to establish
or maintain colonies bordering on the United States or at a distance,
to be ruled and governed at its own pleasure; nor to enlarge its territo-
rial limits in any way, except by admission of new states.”37 Randolph
accepted this interpretation, stating “each annexation should have for its
object, be it near or remote, the creation of self-supporting and mutually
supporting commonwealths.”38 So central was self-governance to anti-
imperialist understandings of the American project that Senator George
Hoar, Republican from Massachusetts, construed all constitutional pow-

ers of the United States, whether they be “called a power of sovereignty
or of nationality” or “expressly declared or named” in the Constitu-
tion, as “limited to the one supreme and controlling purpose declared as
that for which the Constitution itself was framed,” which was to form a
more perfect union of states.39 Invoking the Declaration of Independence
as “the great contemporaneous exposition of the Constitution,” Hoar
argued that this core principle grounding government’s just powers in
the consent of the governed informed, qualified, and limited the uses to
which constitutional powers could be deployed.
The Downes dissenters reprised this anti-imperialist theme. Balking
at the notion that Congress could keep territories acquired from another
sovereignty “like a disembodied shade, in an intermediate state of ambigu-
ous existence for an indefinite period,” Chief Justice Fuller regarded
the theory that the Constitution “created a government empowered to
acquire countries throughout the world, to be governed by different rules
than those obtaining in the original states and territories” as substituting
“for the present system of republican government a system of domina-
tion over distant provinces in the exercise of unrestricted power.” To
Justice Harlan likewise, “the idea that this country may acquire territory
anywhere upon the earth, by conquest or treaty, and hold them as mere
colonies or provinces . . . is wholly inconsistent with the spirit and genius,
as well as with the words of the Constitution.”40
The Power to Govern Territories

Deciding whether the “United States” included the territories determined
whether the Constitution applied to them. This was fundamental, given
the federal government’s very broad territorial powers. For Thayer and
the imperialists whose views he voiced, the power to govern territories,
like the power to acquire them, was organic and intrinsic to sovereignty
and subject only to self-imposed limitations. Absent any obligations vol-
untarily undertaken by treaty with other sovereigns or by legislation,
the United States through Congress was free to do with the Islands as it
wished: it may “sell them, if we wish, or abandon them, or set up native
governments in them, with or without a protectorate, or govern them
ourselves.”41
But even if the power to govern territories originated in the Constitu-
tion, its nature and scope were capacious. While the Constitution limited
federal power over the states to the enumeration in Article I§8 and §9 and
reserved residual powers in the states through the Tenth Amendment, its
Territorial Clause granted Congress plenary power over the territories.
Analyzing the constitutional design, Randolph explained, “The States

of the Union are under the jurisdiction of two legislatures – Congress
and the State legislature each has its appropriate sphere of author-
ity,” but the “Territories are under the exclusive control of Congress.”
Quoting Shively v. Bowbly, Randolph explained that Congress’s posi-
tion as being “the only government which can impose laws upon” the
territories conferred upon it “entire dominion and sovereignty, national
and municipal, federal and state, over all the Territories, so long as they
remain in a territorial condition.” The implications of this power were
vast and sweeping: not only may Congress abrogate laws of the territo-
rial legislature, but First National Bank v. County of Yankton clarified
that Congress “may itself legislate directly for the local government. It
may make a void act of the territorial legislature valid, and a valid act
void.” Congress, therefore, “has full and complete legislative authority
over the people of the territories and all the departments of the territorial
governments” and “may do for the Territories what the people, under
the Constitution of the United States, may do for the States.” Randolph
also noted that although in the territories, “the difference between federal
and local affairs is not marked . . . as in the States,” this division “exists
nevertheless, for Congress stands in a double relation to each territory,
caring for its local interests as a State government might, and treating it
as a part of the republic in matters of federal concern.”42
That Congress exercised plenary and exclusive jurisdiction over the
territories, however, did not mean it could “deal arbitrarily with per-
sons and property” therein. But while anti-imperialists believed that the
Constitution circumscribed congressional territorial power, imperialists
believed any limitations were merely moral.
Both Langdell and Thayer doubted that constitutional limits reached
the territories. Similarly, Senator Platt asserted that, in legislating for
the territories, Congress was “under no constitutional restraint.” Unlike
Langdell and Thayer, however, Platt conceded that Congress was “sub-
ject, of course, to the rules of justice and propriety.” This reflected
Root’s position that the United States enjoyed all the powers with respect
to both territory acquired and its inhabitants that “any nation in the
world has in respect of territory it has acquired,”43 but would govern
according to the “spirit” and “character” of American institutions. Con-
sequently, Platt denied that the Constitution applied to the territories
ex proprio vigore, but acknowledged limitations on Congress’s power
that were moral and voluntary rather than constitutional in nature. For
authority, he quoted Justice Bradley’s Mormon Church opinion stating
that “Doubtless Congress, in legislating for the Territories would be
subject to those fundamental limitations in favor of personal rights which

are formulated in the Constitution and its amendments,” but qualified
that “these limitations would exist rather by inference and the general
spirit of the Constitution, from which Congress derives all its powers,
than by any express and direct application of its provisions.”44
Justices Brown’s and White’s Downes opinions subscribed to this view.
Although territory “appurtenant to” and belonging to the United States,
Puerto Rico was nonetheless not part of the “United States,” which
included only the States. Thus, its acquisition did not trigger the applica-
tion of constitutional provisions. Consistent with the position that only
self-imposed limits could curb organic power, Justice Brown gleaned from
congressional and Supreme Court practice that the definitive question was
whether Congress had formally extended the Constitution to territories. If
so, then his “extension theory” prescribed that “neither Congress nor the
territorial legislature can enact laws inconsistent therewith.” As a corol-
lary, where Congress had not extended the Constitution, then it would be
inoperative both with respect to Congress and the territorial legislature.
For Justice White, it was the act of incorporating territories that engaged
constitutional restrictions.
Baldwin’s HLR piece likewise regarded the Mormon case as reflecting
prevailing doctrine. Acknowledging that prior to 1850, “the court consid-
ered the letter as well as the spirit of the Constitution to have controlling
force,” he noted that beginning in 1884, after the Utah cases, “what is
to be implied or derived from its spirit is treated as the main if not the
only source of restraint.” Nonetheless, this “mode of expression” did
not preclude constitutional applicability, but “may have been adopted
in order to leave the way open to hold, should occasion arise, that the
United States could not lawfully acquire territory to hold permanently or
for an indefinite period as a dependent province or colony.” Similarly,
Randolph regarded such pronouncements as merely affirming Congress’s
“unquestionably broad and exclusive power” to administer the territo-
ries without freeing it from constitutional regulation. Quoting Dred Scott,
Randolph asserted, “The general and unqualified prohibitions imposed
upon Congress are absolute denials of power without regard to place.”
Baldwin concurred, noting that McAllister v. United States had substan-
tially reaffirmed Dred Scott’s relevant ruling. That is, with respect to
territories in general, which he assumed were destined for statehood, the
Constitution applied of its own force. For to admit that the United States
enjoyed the power to rule territories “without restriction, as a colony
or dependent province, would be inconsistent with the nature of our
government.”45 Before the US Senate, Hoar drew identical inferences,

warning that if the Constitution did not follow the American flag, then
it would be raised over the Philippines “as an emblem of dominion and
acquisition” and taken “down from Independence Hall.”46
The Downes dissents paralleled Baldwin’s and Randolph’s views.
Because Puerto Rico became part of the United States after Congress
had organized its territorial government and fixed its inhabitants’ rights,
Chief Justice Fuller’s group dissent regarded the Constitution as oper-
ative therein and the Foraker Act tariff, an unconstitutional violation
of the uniformity requirement of the Constitution’s revenue clauses.
Similarly, Justice Harlan’s dissent argued that ratifying the Treaty of Paris
barred Congress from imposing any duty, impost, or excise with respect to
Puerto Rico “which departed from the rule of uniformity established the
Constitution.” In exceptionalist rhetoric, Justice Harlan bound the Amer-
ican national identity to a form of government restrained by a written
constitution and distinguished this from “monarchical and despotic gov-
ernments, unrestrained by written constitutions,” which could do “with
newly acquired territories what this government may not do with our
fundamental law.”47
Constitutional Compromise
Unconvinced by his fellow HLR series authors, Lowell staked out a mid-
dle ground between their imperialist and anti-imperialist arguments. Both
a lawyer and a professor of government, the future Harvard University
president noted that since both sets of theories “reject a certain number
of decisions,” then “it may not be impossible to formulate a third opin-
ion that reconciles a larger proportion of the authorities than either of
them.”48 Differentiating between acquiring and incorporating territories,
Lowell clarified that the former action by no means entailed the latter.
Rather, each decision was separate and left in either case to congressional
discretion. Sometimes, congressional intent was apparent in the terms of
the treaty itself. The instrument annexing Hawaii, for example, provided
that inhabitants should be admitted as US citizens. The Treaty of Paris,
however, differed in that it ceded territories, but left the rights of territo-
rial inhabitants for Congress to determine. To Lowell, this indicated “if
the government can acquire possessions without making them a part of
the United States, it has done so in this case.”49
Justice White’s Downes concurrence subscribed to Lowell’s the-
ory, arguing that the crucial question was not whether Congress had
extended the Constitution’s provisions to a territory, as Justice Brown had
suggested, but how it had categorized the territory. This, in turn, hinged
on whether or not the United States had incorporated the territory. The
theory that acquiring a territory by treaty did automatically incorpo-
rate it into the United States was articulated as early as 1803, when
Jefferson’s Attorney General advised him that “the power to incorporate,
that is, to share the privileges and immunities of the people of the United
States with a foreign population, required the consent of the people of the
United States.”50 While some treaties – those annexing Louisiana, Florida,
Alaska, and Hawaii – incorporated territorial inhabitants as US citizens
upon ratification, the Treaty of Paris left the rights of Puerto Ricans
and Filipinos for Congress to determine. Consequently, if a “provision
for incorporation when ratified incorporates,” then “a provision against
incorporation must also produce the very consequences which it expressly
provides against.”51 True to classical legal reasoning, once the status of a
territory is ascertained, “the question which arises is not whether the Con-
stitution is operative, for that is self-evident,” but whether the provision
relied upon was applicable.52 Since the Treaty of Paris did not incorporate
Puerto Rico, then she became “in an international sense . . . not a foreign
country, since it was subject to the sovereignty of and was owned by
the United States,” but rather “foreign to the United States in a domes-
tic sense, because the island had not been incorporated into the United
States, but was merely appurtenant thereto.”53
Lowell also disagreed with his fellow authors’ interpretation of the
Constitution’s territorial reach. On the one hand, to follow Langdell and
Thayer and limit the charter’s force to the states alone contradicted many
opinions and led “to conclusions sharply at variance with commonly
received opinion.” On the other hand, to heed Randolph and Baldwin
and encompass all territories under the Constitution’s aegis was to adopt a
doctrine that the Supreme Court had formulated for the older territories,
but not sanctioned for newer and differently situated ones. Moreover,
extending constitutional restrictions “to conditions where they cannot be
applied without rendering the government of our new dependencies well-
nigh impossible” was irrational. To him, the theory that “best interprets
the Constitution in the light of history” and “accords most completely
with the authorities,” was that “territory may be so annexed as to make
it a part of the United States, and that if so all the general restrictions
in the Constitution apply to it save those on the organization of the
judiciary.” However, “possessions may also be so acquired as not to
form part of the United States,” in which case “constitutional limitations,
such as those requiring uniformity of taxation and trial by jury, do not

apply.” Interestingly, Lowell suggested that not all restrictions owed their
existence and force to the Constitution, but “have a universal bearing
because they are in form restrictions upon the power of Congress rather
than reservations of rights.” Provisions like those prohibiting bills of
attainder, ex post facto laws, and titles of nobility and those requiring
periodic publication of a regular statement and account of all public
moneys were rules that “stand upon a different footing from the rights
guaranteed to the citizens, many of which are inapplicable except among
a people whose social and political evolution has been consonant with our
own.”54 But he stopped short of explicitly asserting that these universal
rules would apply to territories that were acquired but not intended to
form part of the United States. Instead, it would be left to Justices Brown
and White to develop in Downes the idea of universal natural rights as a
source of restrictions on congressional power in the territories.
While Justice Brown’s “extension theory” required that Congress first
extend the Constitution to the territories to give it force there, Justice
White’s “incorporation theory,” with which Justices Shiras, McKenna,
and Gray agreed,55 predicated the Constitution’s enforceability on terri-
torial status. Echoing Justice Bradley’s Mormon Church opinion, Justice
Brown noted that “there is a clear distinction between such prohibitions
as go to the very root of the power of Congress to act at all, irrespective
of time or place, and such as are operative only ‘throughout the United
States’ or among several states.”56 For Justice White, it did “not follow
that there may not be inherent, although unexpressed, principles which
are the basis of all free government which cannot be with impunity tran-
scended.”57 Both opinions agreed that to the former category belonged
natural rights, among which Justice Brown included freedom of religion,
speech, and the press; due process and equal protection; and immunities
from unreasonable searches and seizures, as well as from cruel and inhu-
man punishment. To the latter category belonged rights that were political
or procedural and peculiar to the Anglo-American legal tradition, such
as rights to citizenship, suffrage, jury trials,58 and uniformity in revenues.
This validated Root’s view. His maiden report as War Secretary used
the precise example of the revenue clauses to deny Puerto Rico’s right
to uniform duties within the United States, because such provisions were
“of expediency solely adapted to the conditions existing in the United
States upon the continent of North America.” However, Puerto Ricans
“are entitled to demand that they shall not be deprived of life, liberty,
or property without due process of law” as well as other Bill of Rights

provisions based on natural law, because “our nation has declared these
to be rights belonging to all men.”59
Thus, both the extension and incorporation theories yielded the same
net result: even if Congress had neither extended the Constitution nor
incorporated the territory, it was bound to observe the fundamental rights
of territorial inhabitants. Owen Fiss nonetheless points out important
conceptual differences between the two positions. For example, Justice
Brown’s notion of extending the Constitution outside the constitutional
community of the United States was at odds with what Fiss describes
as the dissenters’ contractarian view that flag and Constitution were
“an analytic unity.” Justice White’s emphasis on incorporation, how-
ever, was more congenial with the contractarian conception and perhaps
helps explain why the Supreme Court eventually accepted his doctrine.60
While flag and Constitution traveled together to incorporated territories,
the flag ventured alone into unincorporated territories, grounding their
inhabitants’ fundamental rights not in the Constitution, but in natural
law, albeit expressed in constitutional nomenclature. Rather than settle
on a single conception of constitutional authority and sovereign power,
the Court fused both, preserving the contractarian theory for states
and territories that formed part of the constitutive community, but adopt-
ing the theory of inherent sovereign powers with respect to unincorpo-
rated territories.
Rule of Man Validated by the Rule of Law

Prior to the Insular Doctrine, the possibility of permanent territorial
status had never arisen. For if statehood was “the single and conclu-
sive mark of the ability of communities to govern themselves,” Ran-
dolph believed that the conception of the American republic as a union
of independent, self-governing states “must be maintained if we are to
contemplate free institutions throughout our land.”61 That precluded
permanent territories. Indeed, consistent with a commitment to the rule
of law, Congress’s unlimited territorial powers made sense when tem-
porally limited by eventual statehood. “According to the spirit of the
Constitution,” Randolph argued, “the subjection of annexed territory to
exclusive federal control is an abnormal and temporary stage necessarily
preceding the normal and permanent condition of statehood.”62 Thus,
it was the temporary nature of territorial status that justified departures
from constitutional strictures imposed on Congress in the territories. But
because the Philippine Islands were “evidently and to all appearances
irredeemably unfit for statehood because of the character of its people

and where the climactic conditions forbid the hope that Americans will
migrate to it in sufficient numbers to elevate its social conditions and ulti-
mately justify its admission as a state,” then the United States ought not
annex them at all. Moreover, disavowing “any intention of carving new
States out of the Philippines” to assuage a public leery of making a sister
state out of strange Islands did not, Randolph contended, suffice “to ren-
der annexation palatable” when such a “project is opposed to the spirit
of the Constitution.”63 More sinister than its disingenuousness, this dis-
claimer opened the door for Congress to exercise absolute authority over
the Islands in perpetuity, making of them permanent zones of lawlessness
and unfreedom and giving constitutional sanction to something that truly
contradicted the Constitution’s republican spirit. Randolph regarded such
“readiness to rule the Philippines arbitrarily” an “unseemly feature of the
annexation programme” that was “not mitigated by the promise that
justice and mercy will temper force.”64
While agreeing that the Islands were unfit for statehood, Langdell did
not believe that the Constitution precluded colonialism. To say thus was
to conclude that the framers “were either less successful in saying what
they meant, or else were less sagacious and far-sighted, than they have
had the reputation of being.”65 Likewise, Justice White’s Downes concur-
rence found no constitutional authority for Justice Harlan’s exceptionalist
assertion that the Constitution’s spirit excluded “the conception of prop-
erty or dependencies possessed by the United States,” and, like Thayer,
rejected it as “based on political, and not judicial, considerations.” Yet
even if the Constitution limited acquisition to territories “expected to
be worthy of statehood,” Justice White regarded the “determination of
when such a blessing is to be bestowed” as “wholly a political ques-
tion, and the aid of the judiciary cannot be invoked to usurp political
discretion in order to save the Constitution from imaginary or even real
dangers.”66 By conferring upon Congress absolute discretion either some-
day to grant incorporation or forever to withhold it, thereby creating two
kinds of territories, Justice White’s incorporation theory, which became
the Insular Doctrine, severed the connection between territories and
statehood.
In splitting the territorial category, the US Supreme Court fragmented
the federation by creating potentially permanent second-order members.
Perhaps this is why Duffy-Burnett and Marshall read imperial implica-
tions into the incorporation doctrine, because it allowed Congress to
“now employ the means of colonial government toward an end other
than statehood – that is, as an end in itself.”67 Just as Philippine state-

hood would have been vigorously resisted, so would frankly admitting
to a plan of indefinite retention have been vehemently opposed at home
and in the Islands, even if it had been theoretically possible for the United
States to forever keep unincorporated territories in territorial limbo. For
this reason, American proponents of retention imposed a deadline on
their colonial venture in the Islands. If incorporated territories were des-
tined for statehood, then so might the Islands’ unincorporated territorial
status be regarded as a stage leading to independent nationhood. This
way, the Islands could, as Root had envisioned, eventually assume full
membership in the family of civilized sovereign states when deemed ready
by the United States. Divestment was by no means legally entailed, how-
ever, as seen in the example of modern-day Puerto Rico. Perhaps this
was Anglo-Saxon imperialism after all, albeit cast in terms congenial to
American exceptionalism.
The Unincorporated Territory as Constitutional Conduit

The Insular Doctrine confirmed Root’s own understanding that even
if the Constitution was legally unenforceable in unincorporated territo-
ries, there were nonetheless “certain things that the United States couldn’t
do because the people of the United States had declared that no govern-
ment could do them – the Bill of Rights,” which was a “moral law which
prevents the Government doing certain things to any man whatever.”68
But how would the spirit, rather than the letter, of the Constitution,
govern insular territories in the concrete? How effectively would con-
stitutional protections function in unincorporated territories where, in
Root’s words, “the Constitution follows the flag – but doesn’t quite catch
up to it”?69 Efficacy depended on the nature, distribution, and dynamic
of power among institutional actors according to their locus within the
federal architecture.
The Insular Extension of Organic and Unlimited Sovereignty

A decade into American rule, the Philippine Supreme Court elaborated the
nature of unincorporated territorial status. Although its form and organi-
zation “somewhat resembles that of both” state and territory, the Govern-
ment of the Philippine Islands was located “outside of the constitutional
relation which unites the States and Territories into the Union.” Yet, it
was a “creation of the United States, acting through the President and
Congress,” which derived their powers “from the same source,” namely,
The Unincorporated Territory as Constitutional Conduit 87
the US Constitution, “but from different parts thereof.”70 Because the

colonial vehicle was the agent of the United States, what actually stood
outside the constitutional relation of federalism, along with the unincor-
porated territory, were Congress and the US president, whether acting
directly or through their delegates, in this type of territorial unit. For
even if the Constitution operated on Congress and the presidency directly,
US Supreme Court territoriality cases clarified that it did so differently
when these branches acted in the territories. While Congress’s powers
with respect to the states were confined to the constitutional enumer-
ation of subjects, the US Supreme Court construed far more sweeping
congressional powers over the territories, describing these as “general,”
“plenary,” “sovereign,” “discretionary,” and “supreme.”71 With general,
instead of enumerated, legislative powers in the territories, Congress’s
prerogatives there resembled that of the states within their respective
spheres, but were more complete, because it could legislate on matters
that the Constitution had denied to the states. Moreover, the Insular
Cases confirmed that, until Congress decided to incorporate territories,
its actions in these possessions were constitutionally unrestrained, save
for fundamental prohibitions and natural rights embodied in the Consti-
tution but rooted outside it.72 In theory, therefore, Congress was a virtual
despot in unincorporated territories like the Philippine Islands, because it
was the complete and unrivaled sovereign, enjoying more comprehensive
powers than either Congress with respect to the states or the states with
respect to the Union.
Although Congress was the Islands’ actual sovereign, it was the Insu-
lar Government, as Congress’s agent, that directly exercised its prin-
cipal’s pure and inherent sovereignty in unincorporated territories. As
such, it enjoyed a free hand to design both the structure and substance
of the colonial tutelary program, allowing the Philippine Commission to
adapt American principles and procedures to Philippine conditions. Con-
sequently, the Commission refrained from effecting a wholesale change of
insular municipal laws, but substituted them selectively:73 it retained the
Islands’ Spanish civil and criminal laws, but replaced their commercial,74
procedural, and public laws.75
But while prescribing that adopted measures “conform to their cus-
toms, their habits, and even their prejudices,” McKinley’s Instructions
nonetheless aligned the Insular Government with the mainland’s liberal
constitutional model by subjecting it to a Bill of Rights and separation
of powers theory. Designated with implementing this transplanted
scheme was the fledgling Philippine Supreme Court. In this design
and the discourse that animated it, it was believed, lay safety from
absolutism.
Although an inferior member of the federal family, the Islands impor-
ted the ideological structure and reasoning style that undergirded the
imported American constitutional discourse and the interpretation and
application of its rules. Perhaps this made this unincorporated territory
just as good as a state. When the Philippine Supreme Court refused in
1912 to continue subjecting judges to civil liability, as they had been under
Spain, Justice Adam Carson explained that even if the common law was
not in force in the Islands and its doctrines did not automatically bind
Philippine courts, many of its rules, principles, and doctrines “have, to all
intents and purposes, been imported into this jurisdiction, as a result of
the enactment of new laws and the organization and establishment of new
institutions by the Congress of the United States or under its authority.”
Because “many of these laws can only be construed and applied with
the aid of the common law from which they are derived,” the Court
concluded that “to breathe the breath of life into” transplanted American
institutions, “recourse must be had to the rules, principles, and doctrines
of the common law under whose protecting aegis the prototypes of these
institutions had their birth.”76 With respect to Bill of Rights provisions
specifically, the 1904 US Supreme Court case Kepner v. United States
ruled that to construe the prohibition against double jeopardy and similar
guarantees enacted by Congress for the Islands, it was indispensable to
refer to the US Constitution, for
How can it be successfully maintained that these expressions of fundamental

rights, which have been the subject of frequent adjudication in the courts of
this country, and the maintenance of which has been ever deemed essential to
our government, could be used by Congress in any other sense than that which
has been placed upon them in construing the instrument from which they were
taken?77
Beyond much-hallowed principles, introducing American constitutional

discourse also channeled to the Islands its entire history and tradition.
In various insular forums, both public and private, American lawyers
cited and thereby imported into Philippine constitutional discourse pro-
nouncements by American statesmen like Thomas Jefferson, Alexander
Hamilton, John Adams, Rufus Choate, James Harrington, and Daniel
Webster as authoritative interpretations of American ideas. This legal dis-
cussion was conducted not just before Philippine courts, but also within
the insular bureaucracy, in American-style law schools, with civic and
business associations, or arguably even in the day-to-day conduct of life

within the new constitutional order. Courts, nonetheless, remained the
primary conduit. This process reproduced in the new American colony
conceptions of an American democratic tradition that were shaped by
a history that seemed alive and ever present and in which law, par-
ticularly the US Constitution, exerted a powerful influence. Including
the Islands in the constitutional conversation and imperializing Ameri-
can constitutionalism obscured the limitations under which the Islands
participated.
George Arthur Malcolm: Legal Missionary Par Excellence

Instrumental in transmitting the American rule of law was the work of
American legal missionaries78 in different colonial state-building insti-
tutions in both colony and mainland. Of this group, perhaps no single
American lawyer influenced the Philippine legal system more profoundly
than George Arthur Malcolm. Arriving in the Islands in 1906 with only
“three dollars in my pocket, a University education in my head, and
a letter of introduction in my hand,” this fresh Michigan Law gradu-
ate saw himself as carrying on the adventurous legacy of a great-great
grandfather who made the passage from England to the New World
before the Revolutionary War and a grandfather who walked overland
from Massachusetts to Michigan. Starting out as a Department of Health
clerk, Malcolm was almost fired for his “resolute adherence to America’s
revolutionary anti-colonial policy,” but later vindicated when appointed
to the Philippine Supreme Court. Calling Manila home for thirty years,
he developed affection “for the peoples among whom I lived.” Sens-
ing that “the future of the Islands belonged to the Filipinos,” Malcolm
fought to establish the University of the Philippines College of Law, the
first American-style law school in the first American-style university, “to
train leaders for the future.”79 As a law professor, Malcolm became the
“most successful and best loved . . . [that] the Philippines has had”;80 as a
Philippine Supreme Court Justice, he defined landmark Philippine consti-
tutional doctrines, “which to this day are cited by the bench in deciding
cases, quoted by lawyers in their memoranda and briefs, and resorted
to by law professors in expounding fundamental principles of Constitu-
tional law.”81 In his dual roles, Malcolm permanently determined Filipino
understandings of constitutional categories like separation of powers,82
due process,83 and equal protection.84 His interpretation influenced the
legal world view of an especially powerful audience. Through Malcolm
Hall, as the University of the Philippines College of Law’s main building
was christened, would pass men and women who, much like members of
the elite American bench and bar, would distinguish themselves in Philip-
pine political life as presidents, Supreme Court justices, or members of
Congress.85
Legal missionaries imported with them the classical methodology by
which practitioners had made effective the limits erected by the Consti-
tution to preserve liberty. Aiding them were American legal treatises, one
of the most important vessels of this paradigm. Legal historian William
Wiecek notes that their systematic exposition style made them the “ideal
vehicle for expounding a structure of thought like legal classicism.”86
Of the three leading nineteenth-century classical legal treatises,87 it was
Judge Thomas M. Cooley’s Constitutional Limitations that “enjoyed the
longest life and most extensive influence” in the US mainland and that was
most frequently cited in Philippine legal textbooks and Supreme Court
decisions in the early twentieth century.88 Malcolm’s seminal Philippine
Constitutional Law text not only explicitly acknowledged its intellectual
debt “to Judge Cooley and other eminent authors, for the inestimable help
derived from their standard books on constitutional law,”89 but adopted
Constitutional Limitations’ general organization and presentation of top-
ics. Notably, Malcolm replicated Cooley’s methodical discussion of the
form and functions of government, the distribution of authority within it,
as well as the allocation of power between public and private spheres. As
rendered by American legal missionaries, Cooley’s schema influenced the
work of Filipino Constitutional Law experts. Adopting Malcolm’s outline
for his own textbooks was his young Filipino co-author, Jose P. Laurel.
A University of Phillipines and Yale law graduate, Laurel served as Secre-
tary of Interior in the late 1920s and chaired the Bill of Rights Committee
of the 1935 Constitutional Convention. Likewise, contemporary Philip-
pine Constitutional Law expert and 1987 Constitutional Commissioner
Rev. Joaquin G. Bernas, S.J. also seems to have structured his textbook
after Malcolm’s and embraced as his own Malcolm’s view of Philippine
liberal constitutionalism as a “system that promised the achievement of
balance between power and freedom.” Indeed, to Bernas, “[t]he balanc-
ing of these two social values is the story of police power and ‘due pro-
cess’ and the other constitutional limits on power” and is “the gift of
the American conqueror” to the Philippines.90 In turn, Bernas’s views
have helped shape Filipino legal understandings from the 1970s onwards
and, more significantly, the design of the 1987 Philippine Constitution of
which he was a lead architect.
Highlighting Limits, Downplaying Power

Celebrating the safeguards afforded by fragmenting the Insular Govern-
ment’s power deemphasized the undiluted power of its principal within
the Philippine constitutional order. For while conceding that Congress’s
power over the territories was “of wide extent,” Malcolm nevertheless
insisted, “it would not be logical to suppose that it is without limitation.”
Indeed, “even if Congress, as decided, has entire dominion, national and
local, Federal and state, combining the powers of both the latter,” he still
believed that its complete and supreme authority “must be modified by the
words ‘under the Constitution’” and “must at least be subject to most,
if not all, of the prohibitions on Congress not to do certain things.”91
Acknowledging the difficulty of identifying what precisely were these
restrictions, Malcolm nonetheless brushed off the extreme implications
of the Insular Cases and insisted that by expressly extending to the
Philippines practically all of the basic principles of the American con-
stitutional system, Congress had consigned such constitutional questions
to being of “merely academic interest.”92 Representing concrete proof
that “congressional discretion has always been exercised with an anxious
regard for the rights of the inhabitants of the territories,”93 the Philippine
organic acts’ Bills of Rights carried with them “English and American
jurisprudence interpretative of the same” and have “best served to take
to the Islands American constitutional principles.” Thus “with practically
every item of the Bill of Rights implanted in the Philippines, and with a
democratic government set up in the Islands,” Malcolm believed that
“questions in constitutional law must be looked at from the same angle
here as in the United States.” So incorporated was Philippine constitu-
tional history into the American constitutional tradition by 1920 that
Malcolm saw little need to dwell on the Philippine variant separately, for
“[a]s a matter of fact, at the present moment, Philippine constitutional
history is but an eddy of American constitutional history.” In describing
the Philippine constitutional tradition as an offshoot of the American
and insisting that the same constitutional limitations in substance oper-
ated in the Islands, Malcolm seemed heavily invested in the notion of
limited government as an essential feature of the American system and
intent on denying that American colonial government could be despotic
by design. For if civilized government was limited government, then,
logically, having unlimited power in the territories made the US govern-
ment uncivilized outside the Union. Thus, despite contrary pronounce-
ments in US Supreme Court territoriality cases, Malcolm held fast to
statements like Justice Samuel F. Miller’s in Loan Association v. Topeka

that “the theory of our governments, state and national, is opposed to
the deposit of unlimited power anywhere.”94
Malcolm, however, conflated Congress with its agent. That is, depart-
mental boundaries and the Philippine Bill of Rights confined only the
Insular Government, but did not bear on Congress’s vast and unrestricted
power over the Islands. Congressional sovereignty remained unadulter-
ated and undivided, tempered only by moral precepts rooted in natural
law rather than the US Constitution. In principle, there was truly nothing
to prevent Congress from undoing what it had established.95 And while
the Insular Government was constrained structurally and substantively,
it lacked one crucial constitutional check – the institutional competition
provided by federalism. As Congress’s agent, the Insular Government
enjoyed its principal’s general powers of legislation that were analogous
to those enjoyed by state governments, but possessed broader domestic
autonomy than did the states. Unlike states, the Insular Government was
not Congress’s rival in the federal system, but its alter ego and indeed
partook of the sovereignty that Congress itself exercised over the Philip-
pine Islands. Fixing its own tariffs, minting its own coins, establishing
its own postal service, the Insular Government reflected, extended, and
actually exercised in the Philippine Islands some of Congress’s more com-
plete and consolidated powers over unincorporated territories along with
those inherent in sovereignty. In theory, Congress was the Insular Govern-
ment’s primary institutional check, but, in practice, as Malcolm pointed
out, Congress had “not adopted a policy of petty interference with the
territories and the insular administration in the Philippines” and had
“shown a sympathetic desire to ratify and validate rather than to nullify
and invalidate acts of the Philippine legislature.”96 Thus, the only “real”
safeguard against the Insular Government’s considerable powers within
a constitutional scheme dedicated to preserving the integrity of spheres
would be the internal institutional competition created by separation of
powers and the substantive protections provided by the Philippine Bill
of Rights. This scheme’s prospects for success hinged on its territorial
enforcer, the Philippine judiciary, notably, the Insular Supreme Court.
The Least Dangerous Branch

Unfortunately, many factors undermined the Philippine judiciary’s ability
to act as constitutional gatekeeper.
Philippine courts faced a steep learning curve. Primarily forums for
dispute resolution, Spanish-era civil law courts had neither performed
the same role nor enjoyed the same preeminent position in the Islands
as did their common-law counterparts in the US mainland. Limited as it
was, dispute resolution only recently became a judicial function. From the
beginning of Spanish rule, this task had been subsumed under the many
government responsibilities assigned to colonial executive officials. Not
until the nineteenth century did various Spanish constitutions enacted
between 1812 and 1876 introduce the concept of separating the func-
tions of government departments and extricate judicial functions from
executive officers and assign them to legally trained officials. Despite
monopolizing judicial power, however, ordinary Spanish courts had no
power of judicial review and would not have it until the 1931 Constitu-
tion of the Spanish Republic created special constitutional courts.97 The
courts of the aborted Philippine Republic followed the European system
rather than the American, since the Malolos Charter made no provision
for courts to declare laws unconstitutional or void.98 Thus, at the advent
of American colonial rule, Philippine courts were inexperienced in judicial
review and lacked independence, having only begun to emerge from an
executive orbit that continued to exercise a great deal of pull. For despite
being stripped of his judicial functions, the Governor-General remained
the most formidable colonial official, who controlled all other aspects
of colonial government, such as civil, financial, provincial, military, and
naval affairs, and enacted colonial legislation as head of the Philippine
Commission.
Key to the success of American constitutional government in the
Islands, Philippine courts nonetheless lacked the necessary personnel.
Schooled in Spanish law, Filipino judges had much to learn before they
could properly run American-style courts. Consequently, Taft preferred
that Filipino judicial training proceed gradually, but was forced to com-
promise his plans because of serious obstacles. For one thing, there was a
language problem. Spanish was the language of the law in the Philippine
Islands, and would, as a practical necessity, remain the official language
of the courts until 1906.99 For another, recruiting a sufficient number
of Spanish-speaking American lawyers to fill judicial posts in the Islands
proved difficult. Appointing Americans to the Philippine judiciary was
crucial not only to ensure the proper administration of a new code of pro-
cedure, which Filipino lawyers were already resisting,100 but also because
these posts could not be filled by either Spaniards or Filipinos.
Between Spanish and Filipino judges, the Philippine Commission
reflexively looked first to the more educated, experienced, and civ-
ilized Spaniards. Unfortunately, appointing Spaniards to judgeships
was “impracticable,” because the degree of animosity that existed

between Spaniards and Filipinos rendered it “practically impossible for
a Spaniard to preside as a judge, without exciting a very high degree
of ill-feeling.”101 But neither were Filipino judges well-suited for the
task, because “[c]harges of corruption and incompetence against the
present Filipino judges are common.” Exhibiting the racial and civi-
lizational assumptions that informed the American decision to retain
the Islands in the first place, the Commission determined that “[t]he
number of Filipinos who are fitted by nature, education, and moral
stability to fill such positions is very small” and that “[v]ery few can
be found among them in whose integrity and ability businessmen have
confidence.”102 This resulted in what Philippine historian Bonifacio Sala-
manca describes as “an accommodation that made the judicial branch
of the government relatively the most Filipinized of all branches.”103
Appointments to justice of the peace courts, which were the lowest rung
in the judicial hierarchy, were filled mostly by Filipinos. Nonetheless,
Americans retained institutional control by dominating the higher levels
of the colonial judiciary: American judges outnumbered Filipino judges in
the courts of first instance and, most important, in the Philippine Supreme
Court.
Lacking the necessary personnel, Philippine courts also appeared to
lack the necessary powers. In part, this was because Philippine courts,
like state and federal courts in the US mainland, could not point to any
law explicitly authorizing them to exercise the power to annul acts of the
executive and legislative branches for failure to conform to organic laws,
which served as the territory’s constitution. Instead, the Insular courts’
judicial review authority was inferred from a reference in McKinley’s
Instructions to “certain great principles of government” that formed the
basis of the American constitutional system. By implication, these great
principles of government were understood to include separation of pow-
ers and a judiciary whose role was to enforce constitutional rules and
principles upon the political departments through judicial review. When
the US Congress enacted the 1902 Philippine Organic Act, it provided
clearer, albeit still indirect, basis for the Insular Supreme Court to exercise
judicial review power. Section 10 granted the US Supreme Court jurisdic-
tion to “review, revise, reverse, modify, or affirm the final judgments and
decrees” of the Philippine Supreme Court “in all actions, cases, causes,
and proceedings . . . in which the Constitution or any statutes, treaty, title,
right, or privilege of the United States is involved. . . . ” This same formula-
tion reappeared in Section 27 of the 1916 Jones Law, which served as the
Islands’ constitution until the Philippine Constitution was adopted and

the Philippine Commonwealth established in 1935. Note that the term
used in both the Philippine Organic Act and the Jones Law is “involved”
without specifically mentioning “validity” or “constitutionality.” Thus,
the Insular Supreme Court’s own authority to exercise judicial review
was derivative rather than direct: it was inferred from the US Supreme
Court’s power to review decisions of the Insular Court involving the US
Constitution and US prerogatives, which did not preclude an inquiry into
issues of constitutionality or validity.
While one could argue that having implied powers of judicial review
did not translate to weak American courts, Philippine courts stepped
into an institutional playing field heavily weighted in favor of the politi-
cal branches, especially the executive. As discussed earlier, the American
Governor-General had assumed the Spanish Governor-General’s com-
manding position in the insular institutional setting and exercised leg-
islative powers through his membership in the Philippine Commission.
Functionally consolidating executive and legislative powers in the hybrid
Philippine Commission resulted in a net gain of power in favor of the
Governor-General. As Malcolm observed, the executive’s “direct and
close relations” with the US president and his “membership in the legis-
lature” as well as “indirect control over its members” placed him “above
the legislature in influence.”104 This left the Insular Supreme Court as the
only possible branch that could curb the Governor-General, but it was
hard put to do so, given its dependence on the executive branch.
Not only did the hybrid Philippine Commission overwhelm the
Supreme Court, it also undermined the latter’s autonomy by enacting
Act No. 396, giving itself the power to appoint and remove judges.105
Executive power over judicial appointments would not be scaled back
until the 1920s, when the Court began to assert its own independence
from the executive branch, while not necessarily scrutinizing the acts of
the political branches more rigorously.
Administratively and financially dependent on the central and local
bureaucracy, the Philippine judiciary seemed a poorer cousin of the high-
profile political departments, which Filipinos considered the real prize
of colonial politics.106 Illustrating the kind of indignities suffered by
Philippine courts is Province of Tarlac v. Gale, in which a cash-strapped
Provincial Board evicted the Court of First Instance from its chambers,
substituted its bench with a kitchen table, and deprived it of basic sup-
plies, like a typewriter and stationery.107 Not much better off was the
early Supreme Court whose members struck Malcolm as “entirely too
self-effacing,” performing “their functions in a building more like a shack

than a palace of justice” and receiving meager “salaries not comparable
to those paid judges in England and the United States,”108 even though
they already represented a 20 percent increase from Spanish-era levels.109
Believing that the Supreme Court ought to enjoy “a little more digni-
fied position,” Governor-General Forbes prepared a law giving the Court
“autonomy in its management of its own affairs,” because he felt that
“the necessity for officers of the Supreme Court going to the Attorney
General for authority to make the purchase of a towel, or a supply of
stationery was unsuitable.”110
Even within the American system, the judiciary suffered from built-in
weaknesses. Thus, in Federalist No. 78 Alexander Hamilton spoke of
the judiciary “from the nature of its functions,” as “the least danger-
ous to the political rights of the Constitution.” For while the executive
“dispenses honors” and “holds the sword of the community” and the leg-
islature “not only commands the purse but prescribes the rules by which
the duties and rights of every citizen are to be regulated,” the judiciary
has “neither force nor will, but merely judgment,” for whose efficacy
“it must ultimately depend on upon the aid of the executive arm.”111
But this perception of judicial weakness was literally true of the Philip-
pine judiciary in general and of the early Philippine Supreme Court in
particular. For aside from the fact that its legal opinions “make nothing
happen,” the early Court was not only the “least dangerous branch” but
also the weakest branch especially when juxtaposed against hybrid bodies
like the Philippine Commission, which combined executive and legislative
officials and functions and controlled judicial appointments, removal, and
salaries.
Conclusion
Americans believed that their institutions would not only civilize Fil-
ipinos, but also rehabilitate colonialism itself. But instead of abiding by
the rule of its own law in governing the Islands, American colonial pol-
icymakers created in the Government of the Philippine Islands a consti-
tutional despot by locating it outside federalism and the legal force of
the US Constitution. Nonetheless, they were confident that safety from
tyranny lay in having structured the insular agent after the mainland’s
own liberal constitutional design. But against the organic power vested
in the Insular Government on behalf of Congress and in the hands of an
institutionally, ideologically, and materially handicapped enforcer like
Conclusion 97
the Philippine Supreme Court, the protective potential of substantive and

structural checks was weak. Just as British rule by Indian law produced
its own version of the despotic, the following chapters will elaborate how
justifying the imperial mission according to the assumptions and oper-
ations of the American rule of law paradigm generated a constitutional
colonial despotism.
4
Sovereign but not Popular
Colonial Leviathan, Inherent Power, and

Plenary Authority
To William Howard Taft and the Second Philippine Commission, the

Philippine frontier was a “virgin state” where “[n]ature has done every-
thing, but man has done very little,”1 an undiscovered country that beck-
oned to the pioneering American spirit. Like the terrain they inhabited,
the underfed, unsanitary, superstitious, and unproductive natives cried
out to the American missionaries of modernity to preach the gospel of
progress. With a thorough system of public education, the introduction
of railways and intercommunication of all sorts, and the rapid material
development of the country,2 the progressive Government of the Philip-
pine Islands would remake backward natives into citizens of a modern
democracy within one or two generations.
In the minds of American colonial policymakers, nothing more clearly
demonstrated the beneficence of American colonialism than its develop-
mental goals. Convinced of their uniqueness as imperialists in enlisting
governmentality in the cause of civilization, Americans directed the Insu-
lar Government toward modernizing Philippine politics, economy, and
society. The classroom for Filipino political education, the Insular Gov-
ernment also served as the vehicle for American colonialism’s civilizing
mission. Development was intended to support democracy, and both were
meant to secure Filipino consent to American rule.
But first, there was a war to be won – a war that so eloquently with-
held this consent. Yet if Filipinos could see that, rather than take their
“substance in the form of taxes” yet give “no equivalent in return,”3 as
the Spaniards had, Americans would instead use insular tax revenue to
finance what they deemed the “constructive work” of building a modern
98
Sovereign but not Popular 99
Filipino state and populace, then they might be persuaded to abandon

their independence struggle and embrace American rule. With develop-
ment crucial to the war effort, the Insular Government simultaneously
pacified and civilized the Islands.
Waging its fraught and forceful campaigns, the Insular Government
developed strategies and capacities that realized the muscular and unfet-
tered authority enabled by the Insular Doctrine. First deployed toward
policing and sanitizing natives, the centralized Spanish colonial adminis-
tration taken over by the military outlasted the emergency in which it
was conceived and proved a supple instrument capable of policy appli-
cations ranging from the progressive to the laissez faire and congenial to
both the civilizing agenda and political apprenticeship. Reconciling the
Insular Government’s exercises of power with the American rule of law’s
constitutional expression was a purer, more potent species of sovereign
authority that the Insular Cases had formulated for unincorporated
territories like the Philippine Islands. Vested in a Congress unimpeded
by federalism, this plenary, inherent power was delegated to the Insular
Government as its agent, neutralizing constitutional checks installed to
restrain colonialism’s despotic potential in the Islands. While anathema to
the reigning notion of the nightwatchman state, the Insular Government’s
combination of consolidated structure, concentrated capacities, transfor-
mative mission, and invasive interventions were nonetheless amenable to
the progressive proclivities of American colonial policymakers as well as
ideologically compatible with Filipino understandings of the nature of
government power and its role in society that they had inherited from
Spain and that their leaders had incorporated in the charter of their own
aborted Malolos republic.
Although aimed in the short term at ending war, America’s civiliz-
ing mission pursued a far loftier goal – a genuinely voluntary colonial-
ism that would be unprecedented and exceptional. Preparing the Islands
for independence, Taft-era colonial policymakers hoped that if Filipinos
already enjoyed the trappings of sovereign nationhood within the Ameri-
can fold, albeit without full membership in the American Union, then they
would prefer sovereignty in substance to sovereignty in name. But absent
guarantees regarding the Islands’ future, Filipinos were wary of fully
signing on to such an open-ended program. Armed struggle and covert
resistance thus persisted and coexisted with cooperation and collabora-
tion, seasoning colonial interactions and threatening to undermine, even
undo, the Insular Government’s fragile gains by perpetuating imperial
control.
100 Sovereign but not Popular
These next two chapters unpack the implications of the Insular Doc-
trine’s conception of US power on constitutionalism in unincorporated
territories in the context of the Insular Government’s pacification and
civilization campaigns. Specifically, Chapter 4 examines the impact of
the Insular Government’s theory of power on the dynamic among its
executive, legislative, and judicial branches, and Chapter 5, on the Bill of
Rights’ ability to shield society from government. Exploring the consti-
tutional dimensions of American colonial development reveals how the
colonial encounter forged transplanted doctrine with colonial practice
into an aggressive liberal constitutionalism that foreshadowed the New
Deal.
Constructing a Colonial Leviathan

Americans preparing primitive Filipinos for American-style democracy
conceived of civilization as an education writ large. Beyond affording
them an apprenticeship in governance, American colonial officials looked
primarily to public education to fit “the great body of the people,” which
were “ignorant,” “superstitious,” “submissive,” and “much too easily
controlled by the educated people among them,”4 for citizenship in a
civilized polity. But reforming backward Filipino ideas and attitudes also
required altering their milieu. Delving into the countryside, forests, moun-
tains, and waters of the Philippine archipelago to erect the infrastructure
of modern living, the Insular Government penetrated Filipino homes to
reform medieval habits of mind and body. Combining old and new, for-
eign and domestic theories and techniques, America’s civilizing colonial-
ism was a multifaceted progressive developmental project that aimed at
the total transformation of Philippine life using the Insular Government’s
tremendous institutional capacity.
Institutional Capacity
State-building received top priority early in the American occupation.
Through this instrument, Americans would concretely demonstrate to
the Filipino people the seriousness and sincerity of their promises. With
an operational government, they could not only create Filipino capac-
ity to govern, but also begin to carry out their ambitious developmental
programs. Taking stock of its first year as the Islands’ first civil govern-
ment, the Philippine Commission remarked that since it began to legis-
late in September 1900, its work had been constant,5 and its enactments
were dominated by what American colonial officials characterized as
Constructing a Colonial Leviathan 101
“constructive work,”6 or the work of state-building. By the end of 1901,

the Commission had established the institutional framework of the cen-
tral and local governments. As Chapter 2 recounts, the Commission first
organized the courts7 and the constabulary,8 set up the insular bureau-
cracy with its four departments9 and many bureaus, and enacted munic-
ipal and provincial government codes,10 gradually extending these laws
to new areas as they became pacified11 and authorizing the establishment
of local police in cities and towns.12
Structurally, the Insular Government was a more streamlined version
of the Spanish colonial administration. After unraveling the overlapping
allocation of authority within the Spanish colonial bureaucracy and sim-
plifying a command structure in which lower administrative offices had
answered to multiple heads, the US Army and the Philippine Commis-
sion concentrated in the colonial executive control over all levels of the
Insular Government, from the central government in Manila down to the
remotest barrios in the provinces.
Erected in war’s midst and on its ruins, the Insular Government’s capa-
bilities took form in combating war’s twin and interconnected dangers –
insurrecto bullets and epidemic disease. According to historian Alfred W.
McCoy, the US Army built on this colonial panopticon the intelligence-
gathering machinery for counterinsurgency and population control. The
Army fused human and technological resources, namely, Filipino agents,
whose undercover skills were honed under the repressive Spanish regime,
with fruits of the late nineteenth-century information revolution that had
transformed policing in the United States and Europe, like the typewriter,
adding machine, telephone, telegraph, roll film, fingerprinting, and laid a
grid crisscrossing the Islands that facilitated the collection and transmis-
sion of data supplied by its spies and troop orders. With this pervasive
network enabling “surveillance, not just of a few dissidents, but of mass
movements,” even “entire populations,” McCoy notes that “[f]or the first
time, state security could identify every individual with a unique num-
ber, allowing accurate encoding, filing, and retrieval of data on countless
millions, whether citizens or colonial subjects.”13 This framework also
expedited US Army efforts to establish sanitary zones and practices that
shielded the bodies of American soldiers from strange new germs endemic
to the unfamiliar tropical environment.
When colonial warfare gave way to colonial governance, civilian
agencies inherited the machinery built by the US Army and adapted
it to peacetime uses. As political struggle replaced armed struggle, the
Philippine Constabulary established by the military used its predecessor’s
surveillance and intelligence machinery to monitor lingering opposition

to American rule that simmered beneath the surface long after the offi-
cial end of the Philippine-American War and constantly threatened to
undo the insecure accomplishments of the fledgling American colonial
state. Thus, McCoy identifies the Philippine Constabulary as the first US
federal agency with comprehensive covert capabilities, wielding secret
surveillance, media monitoring, psychological disinformation, penetra-
tion, and manipulation initially to crush revolutionary activity and mil-
itant nationalism and subsequently to tame Filipino opposition through
blackmail, while simultaneously assisting law enforcement efforts to sup-
press vice and crime. Similarly, as settlement and occupation required
American soldiers to leave the confines of sterilized army camps and live
among disease-harboring natives, the Bureau of Public Health extended
to the Filipino population the same therapeutic and preventive mea-
sures first devised by US Army medical officers to safeguard the physical
and mental health of American soldiers in the tropical milieu. Cleansing
Filipino spaces and bodies, such “new public health” measures made the
Islands safe and habitable. Perhaps no institution more clearly encapsu-
lates the Insular Government’s mode of operations than the Culion Leper
Colony. Designated in 1902 to isolate and treat lepers, Culion Island
in Palawan province housed a rarefied, carceral, laboratory-like institu-
tion that exemplified “new public health” protocols, subjecting lepers to
intense surveillance and discipline and organizing their lives “around the
routinized, yet individuated treatment of leprosy.”14 Described by the
medical historian Warwick Anderson as a “microcolony,” Culion cap-
tured in miniature the aspirations, attitudes, and approaches generally
adopted by colonial officials.
Eclectic Interventions
The Insular Government’s combination of centralized structure, inves-
tigative and data collection abilities, and surveillance and supervisory
functions lent itself to multiple policy initiatives, ranging from the least to
the most interventionist. Invoking models past and present, homegrown
and alien, Insular Government policies were as eclectic as its structure.
Insular railroad policy, for example, was drawn, not from contemporary
analogs, but from earlier American practices, because conditions struck
the Philippine Commission as “radically different from those which now
obtain in the United States and more nearly resemble those which existed
half a century ago.”15 Likewise, the Commission felt that the Insular
Government, like its nineteenth-century state counterparts, should be
Constructing a Colonial Leviathan 103
empowered to grant special charters, privileges, and incentives to entice

private investment in economic development. Although such policies had
proved “improvident and unwise and resulted in heavy losses to all con-
cerned” at a later stage of US economic development, they had been “wise
at the time, and has been a potent factor in the unexampled growth and
progress of the American people.”16
American colonial officials also borrowed and improved strategies that
fellow imperialists had tried and tested. They toured other Southeast
Asian colonies to “discuss regime organization, schooling, public health,
plantation agriculture, opium and vice control with their counterparts
from Dutch Java and the East Indies, and the British Straits Settlements
and Federated Malay States.” Requiring fuller exploration, these inter-
colonial exchanges appear to historian Paul Kramer as most dense in
technical areas such as science, technology, agriculture, and trade.17
Above all, however, the Insular Government’s features made it an
ideal laboratory for experimenting with Progressive-era policy initiatives.
Writing about the Bureau of Forestry, historian Greg Bankoff recounts
that Gifford Pinchot, the “father of professional forestry” in the United
States, was able to implement the newer vision of “utilitarian conserva-
tion,” which advocated planned and managed use of resources, over the
prevailing preservationist paradigm, which set aside certain landscapes
entirely.18 Deploying varied administrative technologies, American colo-
nial government in the Islands typified “the fusion of law and adminis-
tration” to which Anghie traces that practiced by the Mandate System
after World War I. Developmental rather than exploitative and extrac-
tive, the Insular Government’s self-conscious benevolence responded to
the imperatives of legitimacy at home and in the Islands.
Ideological Compatibility
As a laboratory for institutional and policy experimentation, the Philip-
pine archipelago was a virtual playground for Progressives, especially
during the Taft era. Compared to their experience in the US mainland,
Pinchot and his associates pursued their novel approaches to forestry with
relative ease and freedom in the Islands. Because the Islands’ conservation
movement “was not rent apart by any semblance of the increasingly acri-
monious dissension” between the preservationists and the utilitarians,
Bankoff explains that “[o]nly the state stood between sawmill opera-
tors, mineral companies, plantation owners and the like and their unfet-
tered designs upon the natural riches of the archipelago,” and the Insular
Government “had already been captured by proponents of the creed of
utilitarian conservation.”19 This sense that policies could more easily be

implemented absent the bruising political battles that attended similar
processes in the metropole generally characterized the Insular Govern-
ment’s experience in areas as diverse as the civil service, public health,
urban planning, public education, and law enforcement.20
Perhaps the Islands seemed more hospitable to activist govern-
ment compared to the mainland, because Spanish rule had predisposed
Filipinos toward this mode of governance. Although lacking the admin-
istrative capacity to provide social services during the early years of col-
onization, Spanish colonial government had distributed crown lands,
conferred monopoly rights, and regulated all aspects of the China-
Acapulco Galleon Trade. From 1570 to 1811, the China Trade was the
economic lifeblood of Spain’s most distant colony, and the government
prescribed everything from allotting much-coveted cargo space to Span-
ish insular residents to specifying the galley’s location on the vessel.21
Bourbon-era Governors-General steered the government toward devel-
oping insular agricultural and industrial resources for export to Spain to
enable the Islands to transcend its status as mere entrepôt for exchang-
ing goods from China and India with silver from the Americas.22 As its
administrative capacities expanded, the Spanish colonial government even
secularized the provision of social services by integrating Roman Catholic
Church personnel into the formal structure of the government.23
In theory, the Spanish colonial government had the authority to shape
all areas of colonial life. But the Schurman Commission found that its
deficient design, cumbersome procedures, and insufficient resources ham-
pered the Spanish colonial government’s ability to administer justice and
maintain peace and order, leading to its failure “to accomplish even the
primary ends of government.”24 Best illustrating its absence of theoret-
ical restraints, however, was Spanish government’s treatment of politi-
cal dissidents. The ruthless and arbitrary manner by which it had cen-
sored the writings and confiscated the property of its political enemies
and arrested, tried, convicted, deported, and executed filibusteros greatly
embittered Filipino revolutionaries. Although the constitutions drafted
by different revolutionary constituencies all enacted Bills of Rights to
curb potential abuses,25 they did not significantly weaken the potential
power of their own Philippine governments. Indeed, the charter prepared
by “eminent Filipinos” for the Schurman Commission granted their gov-
ernment sweeping authority to enact “whatever laws may be necessary
and fitting for the exercise of the dispositions of this constitution or
conducive to the moral and material progress and the prosperity of the
US Sovereignty in the Unincorporated Territory 105
country,”26 including those that would “promote the culture and enlight-
enment of the inhabitants of the archipelago.”27 Charged with both neg-
ative and positive obligations, this government was tasked not only with
protecting its citizens’ bodily integrity or property, but also with actively
ensuring their economic and social well-being. One could thus argue that
the Insular Government realized the promise latent in the Spanish colo-
nial government and were compatible with Filipino aspirations for good
government.
Generally on board with the Insular Government’s governing mode,
Filipino elites were largely in accord with its civilizing goals, having
embraced Western culture as the norm long before the American con-
quest. Partha Chatterjee observes that while the Bengali nationalist elite
of India surrendered the “domain of bourgeois civil institutions” to the
colonial power, they preserved the intimate, inner domain of culture as
“the sovereign territory of the nation” within which they constructed
Indian national identity.28 Thus, the “failure” to fully civilize Indian cul-
ture was due as much to British reluctance as it was to Indian resistance.
But just as the Americans displayed little compunction toward overhaul-
ing Filipino culture, Filipino political elites were quite willing and eager
to be civilized.
Finally, the sense of freedom that American colonial officials felt likely
arose, too, from the intuition that the colonial setting would be freer
of constitutional strictures given the Islands’ place in the federal archi-
tecture. Through the Insular Cases, the US Supreme Court clarified that
Congress’s power in unincorporated territories like the Philippine Islands
was unconstrained by the text of the US Constitution. Yet to be worked
out on the ground and in the actual conduct of colonial administration,
this status would have implications for the nature and extent of the Insu-
lar Government’s power, for the ability of constitutional devices to curb
its exercise, and ultimately for the American tradition of limited govern-
ment.
US Sovereignty in the Unincorporated Territory

At first glance, the Insular Government’s design and operations seemed
anathema to the classical ideal of the nightwatchman state. Yet Philip-
pine legal texts of the period reconciled the Insular Government’s work
as compatible with a constitutional tradition that emphasized limits by
highlighting its obscured corollary of power that the colonial encounter
made more manifest. For authorizing the Insular Government was a
unified conception of sovereignty that federalism and separation of pow-

ers had divided between and within the federal government and the states.
Such were the boundaries, or lack thereof, that the judiciary was to
police.
Against the simplified configuration characterizing the relationship
between the unincorporated territory and the United States, a judiciary
conditioned by its institutional role and training to the “scrupulous”29
observance of constitutional divisions deferred to the judgment of the
political departments in which were vested the Insular Government’s
concentrated authority and civilizing mandate. This deference seemed
both appropriate and necessary, given the urgency that attended initial
judicial decision-making – war and disease. Thus, the context that had
forged the Insular Government’s institutional capacities and dictated its
initial responses also shaped the constitutional elaboration of its power
and justifications for its exercise. Tamed but never totally dispelled, the
twin specters continued to haunt a colonial project in which Americans
were greatly invested. As a result, the militarized interventions devised at
conquest, along with the rationales validating them, would continue to
have currency throughout an American colonial administration that was
in this sense always under siege and fighting for its life. At the same time,
these logistics and logics were directed toward the Insular Government’s
civilizing programs, transcending the emergencies in which they arose
and becoming indispensable to colonialism’s long-term survival in the
Islands.
Textual and Residual Powers

With limited powers within the Union, Congress needs to demonstrate
constitutional authority for its measures; with plenary power in unin-
corporated territories, however, its word was conclusive on courts. This
much the Philippine Supreme Court said in 1905 when Barcelon v. Baker
upheld Governor-General Luke Wright’s order suspending the privilege
of the writ of habeas corpus against the remnants of the Philippine Rev-
olutionary Army.
Despite the formal conclusion of the Philippine-American War in 1902,
Filipino revolutionaries persisted in their struggle, but were from thereon
prosecuted like common criminals under measures like the 1901 Sedition
Act, which criminalized independence advocacy, the 1902 Bandolerismo
Statute, which allowed brigands to be executed even without proving
the commission of actual robbery, and the 1903 Reconcentration Act,
which permitted mass incarcerations in provinces infested with ladrones
or outlaws.30 To crush lingering resistance in four Tagalog provinces,

the colonial regime launched in 1905 an “unrestrained, unconventional
pacification” campaign, which converted these revolutionary strongholds
into a militarized Provincial District and reconcentrated their population
into hamlets. Wright’s order facilitated this aggressive campaign.31
In the midst of this emergency, the Philippine Supreme Court articu-
lated its understanding of separation of powers and defined its approach
to judicial review. Detained under orders of Col. David J. Baker, Felix
Barcelon applied for a writ of habeas corpus, claiming that suspension
had not met the Philippine Organic Act’s condition precedent, namely,
the existence of rebellion, insurrection, or invasion in the areas concerned.
Justice E. Finley Johnson’s majority opinion rejecting his petition evinced
the prevailing “separate spheres” philosophy towards the political depart-
ments, explaining that “[u]nder the form of government established in the
Philippine Islands, one department of the government has no power or
authority to inquire into the acts of another, which acts are performed
within the discretion of the other department.” The Barcelon Court’s
analysis skipped ascertaining Congress’s authority, but proceeded to the
next two steps: first, whether “Congress did confer such authority” on the
Governor-General and the Philippine Commission; and second, whether
these officials “acted in conformance with such authority.” Yet rather
than determine for itself whether a rebellion existed, the Court abstained
from investigating “the facts upon which the Governor-General and
the Philippine Commission acted,” lest this second-guessing tie their
hands “until the very object of the rebels or insurrectos or invaders [will
have been] accomplished.”32 The “separate spheres” approach effectively
allowed the Court to bypass the first and last steps of its inquiry and
deem Congressional assignment of its vast authority final and conclu-
sive. Uneasy with such summary conclusiveness, Justice Florentino Torres
noted archly that even the Spanish monarchy did American democracy
one better, having never authorized the executive to detain persons, “even
where constitutional guaranties are suspended” save “for crime or for
breach of the public peace.”33 Nonetheless, the Barcelon verdict rested
on firm American support, namely, precedents like Martin v. Mott,34
which shielded from judicial scrutiny Presidential orders calling out the
New York militia during the War of 1812.
But even when organic authority was silent or unclear, the Insular
Government had recourse to its “implied powers,” such as “the supreme
and fundamental right of each State to self-preservation and the integrity
of its dominion and its sovereignty.”35 In the same military campaign,
the Philippine Commission deputized the Customs Collector to exclude

persons whom he had reasonable grounds to believe had “aided, abetted,
or instigated an insurrection in these Islands,” even though the Insular
Government had not been granted explicit deportation powers. That the
doctrine of implied powers emerged from deportation cases is ironic, since
Americans were well aware that Filipinos had vilified the Spanish regime
for habitually resorting to this measure to quell political dissent. The US
regime, however, was not averse to deporting political enemies, having
exiled Apolinario Mabini and other revolutionary leaders to Guam.
Upholding the statute as a political measure, In Re Patterson para-
phrased in 1902 US Supreme Court Justice Horace Gray’s proposition
in Nishimura Ekiu v. United States, one of the so-called Chinese Exclu-
sion Cases, that “every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases as it
may see fit to prescribe.”36 To grant this “fundamental right” of states to
the Islands despite its lack of sovereignty was a legal sleight of hand and
perhaps explains why Chief Justice Cayetano Arellano, who authored
the Patterson decision, stopped short of describing deportation power as
“inherent.”
Unlike Chief Justice Arellano, Justice E. Finley Johnson would cat-
egorically portray deportation power as “inherent” when he sustained
Governor-General W. Cameron Forbes’s act of deporting Chuoco Tiaco
and eleven other Chinese nationals identified by Manila police as mem-
bers of a tong, or gang, that was terrorizing and extorting from Manila’s
Chinese. In Forbes v. Chuoco Tiaco,37 Justice Johnson argued for the
Insular Supreme Court in 1910 that “the Government of the United
States in the Philippine Islands” was endowed “with such delegated,
implied, inherent, and necessary military, civil, political, and police pow-
ers as are necessary to maintain itself.”38 By deriving the Insular Govern-
ment’s powers from the federal government’s sovereignty over the Islands,
Justice Johnson suggested that what needed to be articulated was not the
delegation of authority, but rather the limitations on it.
Both Patterson and Forbes invoked Ekiu’s theory of inherent powers
even though the Ekiu case itself did not solely rely on it. Rather, just
as early territoriality cases had derived a right to acquire territory from
the treaty and war-making powers, Justice Gray found that while the US
Constitution had not explicitly created the power to exclude, it entrusted
it to the federal government’s political departments through the nation’s
international relations powers.39 Perhaps because Ekiu’s basis for federal
deportation power was constitutive as opposed to organic, the Insular

Supreme Court also invoked Chao Chan Ping v. United States,40 which
plainly portrayed the power to exclude as “an incident of sovereignty
belonging to the United States” that could not “be granted away or
restrained on behalf of anyone.” Sustaining the Chinese Exclusion Acts
despite their violating US treaty obligations with China, US Supreme
Court Justice Stephen Field explained that this inherent power could
impair vested personal rights, such as the Chinese laborers’ alleged right
to remain, and could not be restricted by the Constitution, since the
laborers were not US citizens, but aliens. The remedy in both cases,
whether to address the treaty violation or the impairment of the vested
rights of Chinese nationals, was political.41
While the two Chinese Exclusion Cases illustrate that the basis for
US powers in the international arena oscillated between the organic and
constitutive poles, the Insular Cases and the later Philippine decisions
clearly opted for the organic theory. This meant that US sovereignty in
this constitutional no-man’s land was not defined, bounded, or governed
by the US Constitution, but existed in its rawest, purest, most feral form.
Whereas ascertaining the authority of different government units on the
US mainland was a complicated affair given the constitutional division
of functions, this process was much simpler, more straightforward in
unincorporated territories. As the unrivaled and untamed sovereign in
this domain, the federal government enjoyed both the powers that the
Constitution had excised from the states’ jurisdiction and entrusted to the
federal government as well as the residual powers reserved to the states
under the Tenth Amendment. The Insular Government, as an extension
of the federal government, partook of this undiluted power and exercised
it on the ground, subject only to limitations imposed by Congress.42
Executive Personification of Sovereignty

Vested in a distant foreign government, sovereignty over the Islands was
exercised primarily by the Governor-General, Congress’s foremost insular
agent. Finding neither organic nor statutory warrant for the deportation
of Chinese nationals in Forbes v. Chuoco Tiaco, Justice Johnson asserted
that deportation power inhered, not just in the Government of the Philip-
pine Islands, but also in the chief executive to whom this power was
entrusted by the nature of his office’s functions. Resorting to triple impli-
cation, Justice Johnson first grounded deportation power in the United
States’ inherent sovereign powers, then claimed that this inherent power
was implicitly delegated to the Insular Government by the sovereign, and
finally argued that this power, by its nature, generally belonged to the
executive branch and thus specifically to the Governor-General as the
embodiment of government power in the Islands. Because deportation
power inhered in the office of the Governor-General, Johnson concluded
that “the mere absence of legislation regulating this inherent right to
deport or expel aliens is not sufficient to prevent the chief executive head
of government, acting in his own sphere and in accordance with his offi-
cial duty, to deport or expel objectionable aliens, when he deems such
action necessary for the peace and domestic tranquility of the nation.”
Under separation of powers, the legislature could prescribe the methods
or conditions for exercising this power, but could neither destroy nor
barter it away. Thus, even in the absence of enabling legislation, “the
person or authority who has to exercise such power has the right to
adopt such sane methods for carrying into operation as prudence, good
judgment, and the exigencies of the case may demand.”43
On appeal before the US Supreme Court, Justice Oliver Wendell
Holmes appears to have conceded the Insular Government’s authority
to deport, but did not associate it with the Governor-General. Instead,
he relied on Act No. 1986, which the Insular Legislature had passed to
ratify the deportation ex post three weeks after the case was initiated.44
Based on this retroactive statute, Justice Holmes regarded the deporta-
tion as “having been ordered by the Governor-General in pursuance of
a statute of the Philippine legislature directing it, under their combined
powers.” Evoking the fusion of executive and legislative functions in the
Insular Government where the Governor-General was both member and
president of the Philippine Commission that was simultaneously cabinet
and upper legislative chamber, this reference to “combined powers” ren-
dered it “unnecessary to consider” whether the Governor-General had
“authority by virtue of his office alone.”45
But even after Congress had more neatly separated the Insular Gov-
ernment’s executive and legislative functions in the 1916 Jones Law, Jus-
tice Johnson’s Forbes opinion still furnished authority for another ques-
tionable deportation. R. McCulloch Dick, the Philippines Free Press’s
Scottish-born editor, was a gadfly of the colonial government and had
been sued for libel for exposing a scandal in the Manila police force
in the 1910s.46 When World War I broke out, the Insular Government
government claimed that his editorials “tend to obstruct . . . policies inau-
gurated for the prosecution of the war between the United States and the
German Empire and . . . tended to create a feeling of unrest and uneasiness
in the community.”47 While the legislature had by this time prescribed
deportation procedures, the new organic law still had not specifically dele-
gated this power to the Insular Government. Acknowledging the “marked
divergence of opinion” regarding whether local statutes conferred depor-
tation authority on the Governor-General or merely designed a proce-
dure on the assumption that authority did exist, Justice Adam C. Carson
examined the history of the Governor-General’s office under American
sovereignty and ruled, as Justice Johnson had in Forbes, that “the power
of the Philippine Government to deport aliens as an act of state is vested
in the Governor-General by virtue of his office,” subject only to the reg-
ulations prescribed by the legislature on the subject.48
The Legislature and Police Power

Like the Governor-General, the colonial legislature could avail of inher-
ent authority.49 As noted, congressional legislation within the Union was
constitutionally limited to matters enumerated under Article I§8 and
those “necessary and implied” to carry out these mandates, with “resid-
ual powers” reserved to the states. Included among the states’ residual
authority was the familiar trilogy of sovereign powers, namely, taxation,
police power, and eminent domain. In unincorporated territories, how-
ever, both enumerated and residual powers were fused in Congress and
available to its insular agent.
Of the trilogy, it was police power that most frequently underpinned
the Insular Government’s colonial development programs and in a pub-
lic health case that Philippine police power crystallized. While United
States v. Toribio50 was not the first Philippine decision to discuss police
power,51 its formulation became the standard by which Philippine courts
have assessed the constitutional validity of government police power mea-
sures from the American colonial period to the present. Through Toribio,
Justice Carson imported into Philippine jurisprudence the classic expo-
sition of American police power doctrine that Massachusetts Superior
Court Chief Justice Lemuel Shaw originally articulated in Commonwealth
v. Alger. Foundational to both American and Philippine constitutional
law, this 1850 case opens the police power chapter in Thomas Cooley’s
Constitutional Limitations,52 which, in turn, influenced the doctrine’s
expositions in leading Philippine constitutional law textbooks. Alger
defined police power as “the power vested in the legislature by the con-
stitution to make, ordain, and establish all manner of wholesome and
reasonable laws, statutes, and ordinances . . . not repugnant to the con-
stitution, as they shall judge to be for the good and welfare of the Com-
monwealth, and of the subjects of the same.”53
Defendant Luis Toribio had violated a Philippine Commission statute

requiring him to secure the municipal treasurer’s permission before
slaughtering his own carabao for food. This prerequisite formed part
of an elaborate compulsory system of identification, branding, and reg-
istration of these work animals in order to prevent the spread of rinder-
pest, a “virulent contagious or infectious disease” that threatened the
extinction of the primary beast of burden in the Islands’ predominantly
agricultural economy. Severely crippling insular agriculture in the early
years of American rule, rinderpest’s ultimate victim was not just the econ-
omy, but humans. Studying epidemic disease in the colonial Philippines,
historian Ken De Bevoise explained that properly disposing of diseased
cattle was believed to prevent mosquitoes from feasting on bovine car-
casses and thereafter spreading malaria and cholera among the human
population.54 Challenged as an unconstitutional interference with prop-
erty rights, this regulatory statute was typical of the kind of inspection,
treatment, and prevention measures that were initially used by the US
Army and subsequently by the Board of Health to deal with out-
breaks of smallpox, malaria, and cholera among the troops and then
among the native population. Illustrative is the comprehensive protocol
implemented to contain the bubonic plague when it struck Manila in
1899. As detailed by Warwick Anderson, this plan involved inspect-
ing all arriving vessels for rodents and human cases; quarantining the
sick, disinfecting sick rooms with carbolic acid, and burning the patients’
clothing and effects; mandating homeowners to replace wooden floors
with concrete, dispose all refuse, burn rat manure, and allow squads of
rat-catchers to set up traps in their homes.55 By engrafting Alger’s formu-
lation of police power to validate the Toribio statute, the Insular Supreme
Court introduced a broad conception of this authority that was congenial
to the kind of intrusions that the statute typified.
Emanating from sovereignty, police power’s scope was practically
unlimited. The Insular Supreme Court would specify the kinds of mea-
sures it contemplated by introducing the rubric “public health, public
safety, public morals and general prosperity and welfare of its inhabi-
tants.”56 To protect “the lives, limbs, health, comfort, and quiet of all
persons, and the protection of all property within its borders,” the “gen-
eral police power of the state” could subject these same persons and
property to “all kinds of restrictions and burdens in order to secure the
general health, comfort, and prosperity of all.”57 This clarification came
via two 1915 cases, both decided by Justice Johnson within two days of
each other and involving the familiar tandem of war and disease. The first
case, United States v. Pompeya, sustained an ordinance that required male

town residents to assist in apprehending ladrones, or bandits. Intended
to safeguard public order, this ordinance was actually a counterinsur-
gency measure, because the Bandolerismo Statute reclassified insurgents
as bandits after the Philippine-American War. The second case, United
States v. Gomez Jesus, ostensibly concerned a neutral public health regu-
lation that imposed licensing requirements for medical professionals.
However, the doctor whose license the Bureau of Public Health revoked
was Dominador Gomez Jesus, the fiery leader of the militant Union
Obrera Democratica. Like Apolinario Mabini and Isabelo de los Reyes,
Gomez Jesus belonged to a group of radical ilustrado nationalists who
had never accepted American rule. For staging strikes in 1909 against
American companies that controlled key sectors of Manila’s economy,
he was imprisoned,58 then barred from medical practice. In this light,
revoking Gomez Jesus’s license seems tied to his strike-breaking activi-
ties, making this public health case ultimately about public order. Perhaps
this context helps explain Justice Johnson’s insistence that police power
was “so extensive and so comprehensive” that courts “have refused to
give it an exact definition; neither have they attempted to define its limi-
tations.”59 Citing these same cases, Malcolm’s Philippine constitutional
law textbook depicted “any attempt to define police power with circum-
stantial precision” as “savoring of pedantry.”60 That Gomez Jesus gives
no hint of the underlying politics reveals how well the imported classical
paradigm severs the legal from the political.
Nonetheless, the views expressed by Justices Johnson and Malcolm
were by no means extreme, exceptional products of colonial emergen-
cies, but hewed to Chief Justice Shaw’s observation that it was “much
easier to perceive and realize the existence and sources of this power, than
to mark its boundaries, or prescribe limits to its exercise.”61 Because
“[m]anifestly, definitions which fail to anticipate cases properly within
the scope of the police power are deficient,” Pompeya and later cases re-
commended that courts “confine our discussion to the principle involved
and determine whether the cases as they come up are within that princi-
ple.”62 As these cases demonstrate, however, the problem with adopting
a case-by-case approach in the Philippine colony’s climate of perpetual
emergency and urgent need for development was that the situations occa-
sioning doctrinal application tended to justify dramatic interventions.
Moreover, courts could extend aggressive rulings to less urgent contexts
or those implicating different types of rights. Examining the US Supreme
Court’s emergency powers jurisprudence, Harry N. Scheiber noticed that
even if property rights were immediately at issue in these cases, “it was
the expanding scope of emergency powers in the generic sense that had an
impact extending far beyond property rights and into the crucial domains
of law regulating the guarantees of ‘life and liberty.’”63 In other words,
what seemed to matter were not so much a particular case’s specific
circumstances, but its doctrinal resolution, because its categories, ratio-
nale, and conclusions could be applied to different sets of facts through
common law adjudication’s analogous reasoning. Thus, from the govern-
ment’s right to protect public health, the Insular Court inferred a correl-
ative right to protect human sensibilities. In 1915, Churchill and Tait v.
Rafferty invoked American decisions sustaining measures protecting the
environment from offensive noises and smells to uphold a controversial
law empowering the Collector of Internal Revenue to “remove any sign,
signboard, or billboard,” not because of any danger that it posed to public
health, but that it “is or may be offensive to sight.”64
Accommodating Cooley’s treatise to the Islands, Malcolm’s textbook
extended from the states to the Insular Government its characterization
of the trilogy of inherent powers as these “great forces of government”
that “exist independently of fundamental law, as a necessary attribute
of sovereignty” and were “as enduring and indestructible as the state
itself.”65 Indeed, while Congress was free to pick and choose which
constitutional protections to extend to the Philippine Islands, Malcolm
claimed that it could not have withheld these inherent powers from the
Insular Government even if it wanted to: “No one of the provisions of the
Philippine organic law could have had the effect of denying to the Philip-
pine government, acting through its legislature, the right to exercise this
most essential, insistent, and illimitable of powers in the promotion of
the general welfare and the public interest.”66 Because the existence and
exercise of such powers “constituted the very foundation, or at least one
of the corner stones, of the state,” Justice Johnson concluded in Gomez
Jesus that the state can neither “be deprived of its right to exercise this
power” nor bargain it away, because to so deprive a state would destroy
“the very purpose and objects of the state.”67
Anchoring police power in sovereignty was a theoretical move first
executed by Chief Justice Shaw in Alger in 1850 and imported into the
Philippine jurisdiction via Toribio in 1910. Following the American Rev-
olution, common law rights over “all real property capable of use and
possession and having no other acknowledged owner” transferred from
the king, as former “head and sovereign representative of the nation,” to
the people of the Commonwealth of Massachusetts, as the new popular
sovereign, “together with all other royalties, rights of the crown, and
power of regulation, which had at any time previously been held and
exercised by the government of England.” This included the exercise of
both the jus privatum or the “right to property in the soil,” which could
be granted by the king or held by a subject, and the jus publicum or
the royal prerogative by which the king held properties like navigable
rivers in trust for the common use and benefit of all. Legal historian Mor-
ton Horwitz notes that Shaw’s maneuver departed from the dominant
postrevolutionary approach that conceived state power “in essentially
private law contractual terms” – that is, “regulatory power was derived
from ‘reservations’ in state’s grants to landowners or corporations” rather
than from “notions of inherent state power.”68 When the Insular Supreme
Court imported American police power doctrine at the turn of the twen-
tieth century, it had readily available this more formidable basis for the
Insular Government’s trilogy of powers, which expedited colonial pacifi-
cation and development.
Rooted in the potent authority of the sovereign, such broad regulatory
powers were logically subject to sovereign control. Where sovereignty was
popular, legal historian William Novak explains that such powers were
tied to institutions of local self-governance – towns, local courts, common
councils, and state legislatures – as opposed to the distant and potentially
despotic federal government. Beyond particular institutional expressions,
however, local self-governance was literally about communities of free
citizens governing themselves. Because “[n]o community was deemed
free without the power and right of members to govern themselves, that
is, to determine the rules under which the locality as a whole would
be organized and regulated,” such open-ended regulatory powers were
“simply a necessary attribute of any truly popular sovereignty.” Novak
situates cases like Alger in this earlier preliberal, common-law world of
self-governing communities. In turn, this world belonged to “a distinctive
and powerful governmental tradition devoted in theory and practice to
the vision of a well-regulated society [that] dominated United States’
social and economic policymaking from 1787 to 1877.”69
Toribio also reproduced this “well-regulated society” in the Islands
when it invoked Commonwealth v. Tewksbury to supply the context for
the existence and exercise of police power. Also decided by Chief Justice
Shaw, Tewksbury regarded as “a settled principle, growing out of the
nature of well-ordered civil society” the premise that “every holder of
property, however absolute and unqualified may be his title, holds it
under the implied liability that his use of it may be so regulated that it
shall not be injurious” to others equally entitled to enjoy their property

or to the rights of the community.70 Shaw’s Alger opinion had traced this
principle to Lord Matthew Hale’s treatises on water rights that deemed
jus privatum always charged with and subject to jus publicum, which
belonged to the king but that later became the sovereign people’s public
interest.71 Through these precedents, Toribio secured Philippine police
power doctrine to this earlier tradition that, unlike the more individ-
ualistic liberal constitutional tradition that later emerged, assumed that
private rights were never absolute and emphasized the community’s supe-
rior claims. In the Islands’ well-regulated society, however, there was no
identity between ruler and the ruled – that is, the sovereignty that sanc-
tioned the Insular Government’s expansive and invasive regulatory power
was not wielded by a self-governing community, but was severed from
its popular basis and lodged in a distant, foreign, colonial government.
Just as the deportation cases divorced the Insular Government’s power
to exclude from the constitutional arrangements that defined its exer-
cise, Philippine police power cases severed the doctrine from the popular
sovereign base that was intended to control it.
Judicial Review and the Political Branches

Finding authority was conclusive on courts with respect to the Governor-
General and practically so toward legislative and administrative bod-
ies. With courts tasked with determining the distribution of authority
among levels and branches of government and ensuring boundaries were
respected, there was not much that separation of powers doctrine could
do to curb the Insular Government’s exercise of the United States’ vast
and concentrated sovereign power over the Islands.
Executive Bastion
Because exercising the right to deport “in a sovereign manner” belonged
to the executive, In Re Patterson concluded, following Ekiu, that when
a statute regulating this right entrusted final determination of facts to
the discretion of executive officers, then “he is made the sole and exclu-
sive judge of the existence of those facts” such that “no other tribunal,
unless expressly authorized by law to do so, is at liberty to examine or
controvert the sufficiency of the evidence on which he acted.”72 Chief
Justice Arellano’s Patterson decision quotes almost verbatim from Justice
Grey’s opinion in another Chinese Exclusion Case, Fong Yue Ting v.
United States, which upheld the deportation of three Chinese residents for
failing to acquire residence certificates within the deadline set by
Judicial Review and the Political Branches 117
Congress. Because the power to exclude aliens belonged to the politi-

cal branches, then Congress could, in its law or treaty-making capacity,
“intrust the final determination of . . . facts to an executive officer, and
that, if it did so, his order was due process of law,” and “no other
tribunal, unless expressly authorized by law to do, was at liberty to reex-
amine the evidence on which he acted, or to controvert its sufficiency.”73
This interpretation effectively constituted the executive officer as both
rule-maker and judge, allowing him not only to define what the statute’s
“reasonable grounds” standard meant, but also to determine whether his
actions satisfied his own criteria.74
Patterson’s blanket insulation of executive authority contrasts with
the distinction drawn in US cases beginning with the iconic Marbury v.
Madison between political or discretionary acts, on the one hand, and
ministerial acts, on the other. In establishing the American doctrine of
judicial review, Marbury defined political acts as those performed by
the president, either personally or through his appointees, pursuant to
“important political powers” invested in his office by the Constitution,
“in the exercise of which he is to use his own discretion, and is accountable
only to his country in his political character, and to his own conscience”
and thus “can never be examinable by the courts.” Ministerial acts, how-
ever, were those imposed on an officer by the legislature, “when he is
directed peremptorily to perform certain acts; when the rights of indi-
viduals are dependent on the performance of those acts; he is so far the
officer of the law; is amenable to the laws for his conduct; and cannot at
his discretion, sport away the vested rights of others.”75 But after charac-
terizing as ministerial Secretary of State James Madison’s duty to deliver
the signed and sealed commissions of federal judges whose appointments
and confirmations were hastily accomplished by Federalist President John
Adams and the Federalist-controlled Senate following their defeat by Pres-
ident Thomas Jefferson and his Democratic-Republican Party, the Court
deftly diffused the political controversy between Democratic-Republicans
and Federalists by invalidating the law that empowered it to grant relief.
Through this act of self-denial, the Court nonetheless claimed the far more
transcendent power to pass upon the constitutionality of laws. In 1910,
however, the Insular Supreme Court in Severino v. Governor-General
eradicated the difference between these two acts, effectively relinquish-
ing its ability to evaluate the validity of any of the Governor-General’s
actions.
Unlike Barcelon, Patterson, and Forbes, Severino involved neither a
detention nor a deportation, but an election contest. Like the police power
cases discussed earlier, Severino illustrates how doctrines developed in
emergencies migrate to circumstances far less extreme. When the Court

of First Instance declared no winner in an election contest over the munic-
ipal presidency in the Negros Occidental town of Silay, the local chief
of the pro-independence Nacionalista Party filed a mandamus petition to
compel Governor-General Forbes to call a special election on the grounds
that such a task was ministerial, but was denied by the Insular Supreme
Court. Comparing state governors with the Governor-General, Justice
Grant Trent observed that while lower state officials enjoyed greater
autonomy from their governors, insular and provincial executive officials
were “bound to the Governor-General by strong bonds of responsibil-
ity.” Hence, if state supreme courts could not control the official acts of
state governors, then “for better reasons” was the Philippine Supreme
Court without “jurisdiction, either by mandamus or injunction, to con-
trol the official acts of the Governor-General,” whose “duties, powers,
and responsibilities are more comprehensive than those conferred upon
any State Governor.”76 Given this difference and having found the prece-
dents inconclusive, Justice Trent decided that the applicable rule was that
articulated in Sutherland v. Governor, which had found “no very clear
and palpable line of distinction” between a governor’s discretionary and
ministerial duties and categorized all his acts as “official.” Written for the
Michigan Supreme Court by none other than Judge Cooley, Sutherland
pointed out that it was not customary in a republican system of govern-
ment to confer upon the governor duties that were merely ministerial,
whose performance did not require him to exercise any discretion what-
soever. Consequently, when the duty was confided to the chief executive,
rather than to an inferior officer, the presumption “in all cases” must
be that “his superior judgment, discretion, and sense of responsibility”
would ensure “a more accurate, faithful, and discreet performance” than
could be relied upon if the duty were devolved upon an officer chosen
for inferior duties.77 Similarly, by assigning the duty to the Governor-
General, the Philippine Legislature determined that he was “in a better
position to know the needs of the country than any other member of the
executive department”; otherwise, “they could have placed the duty upon
some other official of the executive department.”78
Erasing the distinction between a chief executive’s ministerial and polit-
ical acts was warranted not only by “political necessity” and “public pol-
icy,” as it was “sometimes very necessary for the Governor-General to
perform certain important executive duties without delay,”79 but also by
“these fundamental principles of separate and independent departments.”
Judging that the Governor-General “would be in a better position to carry
Judicial Review and the Political Branches 119
out the great underlying principles of American institutions for the peace
and happiness of the inhabitants of this country,” President McKinley
conferred upon this officer “the power to execute the laws according
to his best judgment, holding him responsible to the President of the
United States, without interference from the judiciary.” Thus, what made
an act “official” and immune from judicial review was not its nature,
but its assignment to the Governor-General. This presumption of insti-
tutional competence, whether made by the US president, Congress, or
the Philippine Legislature, was “just as conclusive in favor of executive
action, as to its correctness and justness”80 and blocked judicial scrutiny
of the Governor-General’s exercise of potentially all his powers, whether
granted by the organic acts,81 entrusted by the Philippine Legislature,82
or inherent in his office.83
Categorizing the Governor-General’s actions as “official” and exempt-
ing them from judicial review also had a procedural dimension. The
Philippine Supreme Court blocked virtually all procedural remedies ini-
tiated against the Governor-General, such as petitions for injunction,
mandamus, and civil actions for damages. After McCulloch Dick, habeas
corpus petitions proved unavailing as well, notwithstanding Justice John-
son’s dissent suggesting that the Court could pronounce a detention illegal
even if it could not compel the Governor-General to release a detainee.84
Thus, both substantive grounds and procedural vehicles for challeng-
ing the Governor-General before the courts evaporated. Immunizing the
Governor Governor-General from legal challenge through separation of
powers also insulated his actions from Bill of Rights scrutiny, rendering
him a bastion impregnable by constitutional checks.
Presuming Constitutionality of Legislative and Administrative Acts

While finding authority did not terminate the Supreme Court’s review of
legislative acts, what remained was largely a formality. For one, textual
grants could be as broad and sweeping as the Philippine Commission
statute that conferred on provincial boards “the power to adopt such
regulations as may be necessary to suppress diseases of cattle as was
vested in the Commission itself.”85 Passed during the rinderpest epidemic
that annihilated the Islands’ main work animal, the Batangas ordinance
implementing the statutory command authorized municipal presidents to
shoot diseased carabao. As lenient in finding and construing authority as
the legislature was in granting it, the Court did not insist on a specific tex-
tual mandate. Thus, Justice Malcolm in United States v. Salaveria upheld
a municipal ordinance that outlawed panguingue as a form of gambling
even if it did not fall under the legal definition of gambling, because it
fell within the general welfare clause. Analogous to police power for cen-
tral legislatures, this clause served as an all-inclusive authority for local
legislatures to “interfere wherever the public interests demand it.”86
Once authority was located, measures were almost impossible to over-
turn on constitutional grounds. Through United States v. Ten Yu, the
Insular Court clarified that courts were not to pronounce enactments
unreasonable, illegal, or void, unless they contravened fundamental law87
and were to assume that “the validity of the statute was fully con-
sidered by the legislature when adopted.”88 Summarizing precedents,
Malcolm observed that “the invariable rule” followed by Philippine
courts was to “indulge every possible presumption in favor of the valid-
ity of a statute.”89 In an expression of extreme deference, Churchill and
Tait v. Rafferty asserted that courts “should never declare a statute void”
unless its invalidity was “beyond a reasonable doubt,” out of “decent
respect to the wisdom, the integrity, and the patriotism of the legislative
body.”90
All enactments of all legislative bodies – from national to munici-
pal – benefited from this generous presumption. Reared in a mindset that
linked broad powers to self-governance, Justice Malcolm extended this
assumption to even the lowest levels of government, believing that in
these “miniature states,” “councilors must, in the very nature of things,
be familiar with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject, and necessi-
tate action” and were “in a better position to say whether the playing
of panguingue is deleterious to social order and the public interest in a
certain municipality. . . .” Thus, the judiciary “should not lightly set aside
legislative action when there is not a clear invasion of personal or property
rights under the guise of police regulation.”91 Like courts in the classical
mold, the Insular Supreme Court characterized the Philippine judiciary as
mere administrators of the law and emphasized that the relevant question
pertained to the legislature’s authority to enact a law, not to the law’s
wisdom, necessity, or propriety.92
Although police power and the general welfare clause were techni-
cally legislative prerogatives, the Philippine executive defined the public
interest and shaped these doctrines through the Philippine Commission’s
functional consolidation of legislative and executive power. But even after
the Jones Law had separated these departments, the executive continued
to influence these doctrines in practice through administrative regulations
that fleshed out legislative policy and established what the public interest
Conclusion 121
meant in concrete, day-to-day situations in the course of enforcing the

law.93 Moreover, executive control over central officials in local gov-
ernment units so thoroughly enmeshed local with central authority that
the entire Insular Government network became a single administrative
bureaucracy.94
With executive-controlled administrative agencies forming part of the
Philippine constitutional landscape from the inception of American rule,
the Philippines, unlike the United States, had not emerged from what the
political scientist Stephen Skowronek describes as a system of “courts and
parties,” where extra-constitutional party organizations had “facilitated
working relationships within and among the branches and levels of the
constitutional structure” and courts had acted as a surrogate for a more
developed administrative apparatus.95 Whereas common law courts in
the United States had mightily resisted the transfer to specialized regu-
latory agencies, like the Interstate Commerce Commission, the regula-
tion of issues that once fell within their jurisdiction, Philippine courts
approached administrative agencies guided by what Malcolm identified
as “the well-known principles of public officers and extraordinary reme-
dies.” Within these rules, it was understood that “the judiciary can con-
trol a duty not discretionary, imposed by law on a public officer,” but
that courts will usually “confine themselves to the enforcement of legal
and equitable rights, ‘leaving the administrative affairs of the govern-
ment to administrative officials.’”96 The effect of these principles was to
remove vast areas of colonial regulatory activity from meaningful judicial
oversight.97
Conclusion
That constitutional limits would prove unavailing against a Governor-
General who personified US sovereignty in the Islands did not, however,
contravene the classical conception of limited government. Constitutional
limits had evolved to curb, not tyranny in all its forms, but a specific
threat from a specific source – that of redistribution at the hands of legis-
lative majorities. Thus, separation of powers and the Bill of Rights are
viewed properly as anti-legislative strategies that must be located against
a broader historical and theoretical context that assumed that the legi-
slature was supreme. That is, the emergence of popular sovereignty in
the Anglo-American tradition was tied to the legislature, particularly the
lower house, as the branch of government that housed the popular ele-
ment in an organically structured society. By placing law-making at the
top of the hierarchy of government functions and by giving to Congress

the weapons for a final showdown against the executive and judicial
branches of the federal government, the US Constitution’s presumed
background was that of legislative supremacy.98 Given an executive that
had embodied imperial authority since Spanish times, such anti-legislative
weapons proved unavailing against the true source of despotism in the
Islands.
The application of separation of powers doctrine had effectively termi-
nated judicial inquiry into the Governor-General’s actions beyond ascer-
taining authority for them and heavily inclined courts to uphold legisla-
tive and administrative measures. Nonetheless, courts still had to assess
the latter’s conformity with the Bill of Rights in the Philippine Organic
Acts. The following chapter considers the efficacy of the Bill of Rights
in chastening an American colonial sovereignty that had been liberated
from federalism, shielded by separation of powers, and unleashed by a
civilizing mandate.
5
Progressive Interventions, Parchment Barriers
Civilizing Mission, Colonial Development, and

Constitutional Limitations
Envisioned as an all-encompassing modernization program, American

colonialism’s civilizing goals were as “frankly reformist” as those that
historian Peter Stanley associates with colonial education. Both sought
“to dignify the tao of the fields, to spread skills, and to instill demo-
cratic and bourgeois values; and by so doing to break through traditional
patterns of dependence, promote individual initiative and mobility, and
reduce the economic imbalance between rich and poor.”1 Beyond mold-
ing sound minds in healthy bodies, it aimed to remake Filipinos, not so
much into Americans, but into an ideal American type – akin to historian
Barbara Welke’s “universal legal actor.”2 Capacitated and autonomous,
this individual’s means of livelihood was independent and his rights and
obligations, created by law or contract rather than derived through his
status in hierarchical social relationships. With a society composed of the
American liberal regime’s paradigmatic players, the Islands could sustain
a sovereign democratic state much like America’s and serve as a model
for modern democracies.
If granting civilized rights to the uncivilized seems incongruous, so, too,
did civilizing initiatives appear to contravene a constitutional scheme that
diluted power and blocked it from spheres designated as private. For in
using civilized government for civilizing purposes, the colonial project
exposed and pitted against each other two contradictory tendencies that
are hidden yet hardwired into liberalism. Postcolonial scholar Uday Singh
Mehta identifies in liberalism an “enduring and pressing tension” between
its impulse to bar political power from certain zones of individual life, on
the one hand, with its “deep impulse to reform the world,” on the other.
As a product of philosophic modernity like Marxism, liberalism regards
123
124 Progressive Interventions, Parchment Barriers
arrangements that ordered the world not as natural but rather as change-
able through political effort and associates the use of political power with
the betterment of life.3 Seeking a total cultural transformation, Ameri-
can colonialism required an unprecedented degree of power over people’s
lives, for the real target of change was the individual – not just his use of
property, but his practices and beliefs – in other words, liberalism’s sacred
spaces. Rendering the private of preeminent public concern, the civilizing
mission easily hurdled doctrinal obstacles. Deploying the mechanisms of
limited government for civilizing goals more fully employed liberalism’s
hidden cache, amplifying its drive to improve the world while muting its
commitment to individual liberty.
Yet for all its transformative aspirations, America’s civilizing colo-
nialism did not go far enough to achieve its emancipatory goals. While
constitutionally empowered to pursue all manner of social ends by its
broad conception of the public interest, the Government of the Philippine
Islands stopped short of engineering economic growth. Neither taking the
lead in developing the economy nor altering the existing distribution of
resources, Taft-era officials opted instead to support private investment.
Philosophically opposed to government involvement in the economy,
they were also predisposed by their constitutional tradition’s repugnance
toward redistribution against tampering with existing configurations of
property rights that underwrote native dependence and deference. Recon-
ciling government’s civilizing intrusions with Bill of Rights protections,
yet enshrining the property rights that contributed to native subservience,
America’s civilizing colonialism recast servile natives into subordinated
constitutional actors.
Education for Democracy

America’s civilizing colonialism was to be a comprehensive education,
transforming medieval Filipinos reared in a world saturated by religion
into modern individuals suited to a polity where decision-making rested,
not with a divinely ordained monarch, but with the people.
Public Education
Indispensable to the civilizing mission, public education enjoyed enthusi-
astic American commitment4 and tremendous Filipino support. Described
by the Schurman Commission as “at all events keenly alive to the draw-
backs under which he has thus far labored,” the native was “strongly
Education for Democracy 125
desirous of securing better educational advantages” and “would cheer-

fully bear almost any burden of taxation having for its object the provision
of funds for a good public-school system.”5
Beyond teaching the 3R’s, education was designated by McKinley’s
Instructions to the Second Philippine Commission for the Jeffersonian
task of fitting “the people for the duties of citizenship and for the ordi-
nary avocations of a civilized community.”6 Supplanting the Catholic
Church, the Bureau of Education established a centralized system of pub-
lic schools and secularized the curriculum, departing from the Spanish
period’s intensely religious focus. For practical and ideological reasons,
English became the medium of instruction. It provided a common lan-
guage to a polyglot populace, facilitated the work of American teachers
and administrators, and speedily Americanized the values and ideas of
Filipino schoolchildren using existing books.7
Public Health
Viewing sovereign capacity as physically embodied, the Bureau of Public
Health civilized Filipino bodies as well. For Filipinos were unprepared for
self-government, not merely because they were illiterate, superstitious,
and politically inexperienced, but also because they were unhygienic,
disease-bearing, and, consequently, unproductive. Its aims exceeded those
pursued by the Mandate System’s international public health program
under the League of Nations. Uninterested in remaking local institu-
tions, the Mandate System improved native health to increase native labor
productivity and colonial economic wealth.8 But while American colo-
nial public health aspired to make better Filipino workers, its symbolic
importance went far beyond maximizing their ouput, because American
colonial authorities connected self-governing capacity to physical health,
cleanliness, and vigor. Medical historian Warwick Anderson sees medical
and civic discourses as being “overlaid upon each other”: erstwhile polit-
ical wards were treated as “infants in need of, and capable of responding
to, bodily training and guidance in proper behavior, that is, subject to a
‘benevolent assimilation’ into a sort of American adulthood,” and “[i]n
heeding the gospel of hygiene, some Filipinos – with needy lepers in the
vanguard – might therefore be given limited civic rights, becoming pro-
bationary citizen-subjects.”9 The hope was that once schooled in liberal
democracy and habituated to hygiene, Filipino natives would be less likely
to wage war or spread disease in the colonial polity, making civilization
the ultimate antidote to danger.
Practical Liberty
Submissiveness was more problematic, for much trickier to tackle were its
roots in preexisting kinship patterns by which social inferiors tradition-
ally deferred to superiors. Public education attempted to alter precisely
such arrangements. But historian Frank Golay explains that replicating
American educational models in the Islands limited the distribution of
educational services and “contributed to the unintended elitist character
of the educational system.” While primary schools had been established in
almost every barrio within the first decade, these enrolled only 35 percent
of school-aged children, typically those whose labor could be spared. An
even smaller minority completed the primary level.10 Higher education11
and the pensionado program, which began in 1900 to send the bright-
est Filipino university graduates for advanced studies in US universities,
benefited primarily those already better off.
At the same time, the Taft Commission had described the “educated
people” as “full of phrases concerning liberty,” but having only a dim
understanding of “what real liberty is” and the “mutual self-restraint”
required to maintain it. If common folk were overly subservient, then
ilustrados seemed unable to understand “the division of powers in a
government and the limitations that are operative upon all officers, no
matter how high.”12 Thus, what Filipinos needed in addition to formal
education was actual experience in limited government to learn what
Governor General William Howard Taft called “practical liberty.”13 This
would replace the ilustrados’ mostly theoretical conceptions and comprise
the native’s understanding of the American rule of law. Some of these
lessons came by way of constitutional litigation.
Practical Liberty and the Bill of Rights

To introduce its discussion of the Bill of Rights, Judge Thomas Coo-
ley’s Constitutional Limitations expounded at length on federalism and
separation of powers. This evinced his understanding that doctrinal limi-
tations like the Bill of Rights were meant to function against a particular
constellation of authority that more evenly distributed power among
government branches and that divided and bounded the exercise of US
sovereignty within the federal community, but not outside it. Designed to
operate in tandem, mechanical and doctrinal limitations were, however,
severed from each other and reconfigured in the Philippine colony, mod-
erating their effectiveness in that setting. By adapting Cooley’s paradigm
despite contrasting mainland and colonial institutional landscapes,
Practical Liberty and The Bill of Rights 127
Philippine constitutional law expert Justice George A. Malcolm seems

to have relied almost entirely on the Philippine Bill of Rights to temper
the activities of an Insular Government that exercised Congress’s consoli-
dated sovereignty to carry out civilizing mandates absent these structural
checks. Thus was cast the Filipinos’ syllabus in practical liberty.
Philippine Due Process

Chapter 4 explained that locating authority effectively terminated judi-
cial scrutiny of executive action and created a strong presumption of
constitutionality for legislative acts. While inclined to uphold legislative
measures, however, courts had still to assess their conformity with fun-
damental law, notably the Philippine Bill of Rights. Of this charter, it
was principally against due process and, later, equal protection that the
constitutionality of insular police power measures was evaluated.
Philippine due process was established in the same case that introduced
police power to Philippine jurisprudence. Discussed in Chapter 4, United
States v. Toribio required the state to justify police power interventions by
showing, “first, that the interests of the public generally, as distinguished
from those of a particular classes, require such interference” and “sec-
ond, that the means are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals.”14 With
these words, the Insular Supreme Court adopted substantive, rather than
procedural, due process analysis as the Philippine jurisdiction’s standard.
This substantive conception imposed more rigorous criteria for valid
intrusions on private rights than its procedural counterpart’s require-
ments for notice and hearing. American courts had originally under-
stood due process in its formal, procedural sense, but began to view it
as operating as a substantive restraint on state action toward the late
nineteenth century, especially after the adoption of the Reconstruction
Amendments.15 Substantive due process also supplanted the contracts
clause, which had served as the major federal constitutional restraint on
state economic regulation in the postrevolutionary period.16 Once again,
this development reflected evolving understandings of the source of state
power from one that treated it in “essentially private law contractual
terms”17 to one that grounded it in sovereignty. Philippine law, however,
skipped the jurisprudential evolution leading to this paradigm shift, for
as Philippine constitutional law expert Joaquin G. Bernas, S.J. notes, the
“Contract Clause came to the Philippines after its significance in con-
stitutional jurisprudence had been pared down by the rise of substantive
due process as a restraint on legislative action.”18 Thus, decisions as early
as Toribio unproblematically fused both procedural and substantive due

process to check government action.19
At this juncture, Philippine courts became what historian Daniel T.
Rodgers designates as “arbiters of what the people’s representatives could
and could not do” regardless of their purported public benefits,20 and the
influence of Constitutional Limitations and its classical legal philosophy
emerged most clearly in Philippine law. Yet, this scheme did not success-
fully check Insular Legislatures. Despite adopting a seemingly tougher
test, Philippine due process review was largely pro forma, as official mea-
sures easily hurdled Toribio’s requirements for a public purpose and rea-
sonable means.21 To begin with, Toribio’s criteria would be equivalent to
rational basis scrutiny, the most lenient test used by today’s US Supreme
Court. Moreover, while frequently deployed to ensure that the legislature
would not “under the guise of protecting the public interests, arbitrar-
ily interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations,”22 substantive due process “was
rarely invoked with success.” Bernas observes that “[f]rom the very begin-
ning, the Philippine Supreme Court gave generous latitude to legislation
designed to promote public health, public safety or public welfare,”23 per-
haps because the Insular Government’s developmental projects fit snugly
within this rubric.
For one, Toribio’s standards of necessity and proportionality were
capacious enough to accommodate the Insular Government’s progres-
sive fusion of science, law, and administration. Incorporating the latest
scientific developments, Insular Government programs seemed the very
embodiment of modernity and rationality and defined what “reasonable”
meant to a Court already disposed to defer to administrative expertise.24
For another, the public purpose requirement seemed a meaningless stan-
dard in the context of a civilizing mission that aimed precisely at trans-
forming the personal notions and habits of natives, converting what was
typically private in the US mainland into a public matter in its Philippine
colony. Bolstering such interpretations was a bias built into Philippine
jurisprudence toward community rather than individual rights, thanks to
the importation of Commonwealth v. Alger’s notion of a “well-regulated
society.” As Chapter 4 explains, this vision of the polity endured even
though the Insular Court introduced later decisions that William Novak
calls “the great police power cases of the late nineteenth century” in which
“Lemuel Shaw-like arguments about the well-ordered society and civil lib-
erty in self-governing communities became increasingly rare.” Through
these newer cases, the US Supreme Court reexamined and re-litigated
Practical Liberty and The Bill of Rights 129
regulatory issues no longer in light of their “roots in amorphous English

common law and continental police tradition,” but within the frame-
work of the US Constitution.25 But while this liberal and individualis-
tic constitutional tradition supplanted the well-regulated society in US
cases, both traditions coexisted in Philippine colonial jurisprudence, as
the Insular Supreme Court accommodated newer developments within
the established tradition. Thus, while acknowledging constitutional
limitations on state power, the Court reasserted state prerogatives almost
in the same breath, emphasizing that none of the constitutional guaran-
tees were “designed to interfere with the power of the State, sometimes
termed its ‘police power,’ to prescribe regulations to promote the health,
peace, morals, education, and good order of the people, and to legislate
so as to increase the industries of the State, develop its resources and add
to its wealth and prosperity.”26 In other words, the background assump-
tion in the Philippine colony remained that of the well-ordered society,
and its broad conception of the public interest legitimated what the Court
observed to be the “rapid extension” of regulatory power “within com-
paratively recent years to points heretofore deemed entirely within the
field of private liberty and property rights.”27
Parchment Barriers
Blurring federal and interdepartmental boundaries placed the burden of
policing entirely on doctrinal checks like the Bill of Rights – a strat-
egy that James Madison and the American Founders would likely have
deemed naı̈ve and wrongheaded. Because Madison believed that mechan-
ical contrivances like federalism and separation of powers were superior
to “parchment barriers,” he considered the Bill of Rights superfluous
to the US Constitution.28 But because Congress proposed this federal
Magna Carta as the US Constitution’s first ten amendments soon after its
ratification, Madison’s insights about the superiority of design over doc-
trine were never tested in the US mainland. Having constitutionalized the
Insular Government’s exercise of its consolidated sovereignty, Philippine
jurisprudence offers a concrete opportunity to observe the unfolding of
the counterfactual and to see whether relying primarily on “parchment
barriers” absent effective institutional restraints might, in practice, be ill-
advised. Even more important, this experience also tested the viability of
a benevolent imperialism tempered by the spirit of liberal constitutional-
ism. In public international law, sovereignty doctrine’s expansiveness was
most fully revealed, not in encounters between mutual sovereigns, but in
the lopsided dealings between sovereign European states and “backward”
countries excluded from the family of civilized nations.29 Similarly, Amer-

ica’s civilizing colonialism entailed a fuller expression of US sovereignty
in the Islands by removing it from the political and constitutional arrange-
ments that controlled its exercise on the US mainland, thus awakening
American liberalism’s dormant reformist impulse. In this way, the colo-
nial encounter revealed that liberal constitutionalism, even in the hands
of a republican sovereign, was in all respects imperial and thereby shaped
Filipino understandings of practical liberty.
Improving Material Welfare

Further undermining attempts to empower deferential natives was that
the Insular Government left undisturbed the material basis of their sub-
missiveness to social betters. For various reasons, government initiatives
trod gingerly around property while aggressively remaking the individ-
ual. For one, redistributive policies that could have restructured insular
class relations would have violated Treaty of Paris provisions prohibiting
the United States from impairing the property and rights of legally con-
stituted entities and individuals of whatever nationality.30 For another,
they would have threatened ilustrado interests. Indispensable to Amer-
ican colonialism’s success, the need for ilustrado cooperation stultified
its “most far-reaching reformist and modernizing goals.”31 Beyond legal
and pragmatic concerns, however, such outright interference with own-
ership rights posed what Morton J. Horwitz calls “the threat of coerced
economic equality”32 that the constitutional system had been designed
to allay. Instead, the historian Bonifacio Salamanca considers Governor-
General Taft’s economic strategy as reflecting both American faith in
“what constituted her vital economic interests” as well as naiveté “that
the economic development of the Philippines, as well as some desirable
changes in the economic structure, could be achieved by simply introduc-
ing American methods of free enterprise and business” and creating an
environment conducive to these activities33 – that reform, in other words,
would trickle down from growth, because modernization processes were
presumed to be independent of class, religion, and culture.
Property and the Insular Economy

Had it been so inclined, the Insular Government was well-positioned
to centrally direct insular economic development. Further bolstering its
formidable institutional and doctrinal arsenal were recent US Supreme
Court decisions that broadened the reach of police power beyond the
Improving Material Welfare 131
already expansive traditional rubric of “public health, public safety, and

public morals.” These cases created the new category called “businesses
affected with public interest,” which encompassed public utilities, com-
mon carriers, insurance, telecommunications, and the professions. Once
again, Philippine jurisprudence leapfrogged to the conclusion of a long
process of doctrinal development. This process began when Chief Justice
Lemuel Shaw attempted to expand the public category by adapting Lord
Matthew Hale’s tripartite classification of rivers as strictly public, strictly
private, or publici juris, that is, property private in ownership yet subject
to public use. Contending that a river was public if it was “susceptible
of use by the public,” Shaw concluded that nuisances or impediments to
passage thereon could be punished by indictment and removal.34 State
and federal courts subsequently analogized from rivers to bridges, ferries,
turnpikes, railroads, ultimately culminating in the broadest formulation
of the “public” through Munn v. Illinois’s category of “businesses affected
with public interest” under which it classified grain elevators. In this 1877
US Supreme Court case, Chief Justice Morrison Waite argued that pro-
perty became “clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large.”35 This
made the Insular Supreme Court’s task largely one of straightforward
classification, as Munn’s “affectation doctrine” enabled it to unprob-
lematically categorize common carriers, ice plants, even billboards as
businesses affected with public interest, for “to the extent that these busi-
nesses affect not only the public health, safety, and morals, but also the
general social and economic life of the nation,” then it is “necessary
for the state to interfere by regulation,” even if “the enjoyment of private
property is interfered with in no small degree and in ways that would
have been considered entirely unnecessary in years gone by.”36
But rather than transform property as they tried the individual,
the Insular Government strengthened its foundations. Significantly, it
respected formal titles issued under Spain and introduced through the
Torrens System a systematic procedure for landowners to secure clear
documentary title over proven holdings. Efficient and practical, this pro-
gram neutralized and commodified property, transmuting it into a good
easily exchangeable in a modern economy. But it also reinforced the mate-
rial foundations of elite ascendance while simultaneously weakening the
common folk’s ability to claim a share of landed wealth, because it dis-
proportionately advantaged elite landowners, who had the incentive and
means to access the lengthy and costly land registration processes under
both colonial regimes.37
More fundamentally, however, formal Spanish titles did not accurately

reflect actual ownership in many cases. Thus, privileging documentary
and formal proofs of ownership unwittingly preserved this inaccuracy and
the inequality that produced it. The historian John Larkin observes that
beginning in the mid-1870s, the Spanish colonial government sold large
tracts classified as public lands, or territory considered unoccupied and
belonging to the Crown, to petitioners presenting proof of cultivation
in the large sugar-producing province of Negros. Thus, land’s cheapness
along with its abundance in Negros combined to create great fortunes38 –
fortunes that the American registration system immunized from chal-
lenge. Likewise, legal scholar Owen Lynch notes that Spanish colonial
law equated customary property rights, both communal and individual,
with titles held in fee simple, but provided only “for the documentation
and registration of individual land rights.” Registering communal titles
in the chief’s name helped facilitate “an ever-expanding pattern of illegal
usurpation” by Spaniards, notably the religious orders, and by native and
mestizo elites.39 American land policy operated to stabilize and cement
their questionable ownership of these documented lands, which repre-
sented one-tenth of the Philippine land area. Finally, American land pol-
icy disenfranchised “hundreds of thousands of people who held, or were
believed to hold, undocumented customary rights or some local variation
of a customary/colonial right which lacked proper documentation”40 and
subsumed these untitled lands into the public domain.
Rather than subdivide haciendas, the Insular Government intended to
distribute land to individual owners by offering the public domain for
purchase and lease through homestead and patent applications. The goal
was to create independent yeoman farmers as the prototypical citizens at
the foundation of Philippine democracy after the mythical Jeffersonian
model of their mainland counterparts. For causes yet to be fully examined,
however, these programs met with lukewarm response from the agrarian
population,41 leaving most of the public domain available for corporate
development.
Incentivizing Private Investment and Lukewarm Responses

Such land policies fit within a mode of ordering public and private
realms that reflected what Horwitz denotes as “an old conservative view”
within legal classicism. It regarded “a self-regulating, competitive market
economy presided over by a neutral, impartial, and decentralized ‘night-
watchman’ state” as the primary reason “why America had uniquely
been able to avoid falling victim to tyranny.”42 Consistent with the
impetus driving late nineteenth-century American expansion, Taft-era

economic strategy tried to create this “free market” by replicating early
to mid-nineteenth-century state economic development models. Like the
cash-strapped postrevolutionary Commonwealth of Massachusetts that
cultivated a partnership with private business by granting franchises, spe-
cial charters, eminent domain powers, and tax exemptions, the Philippine
Commission directed trade, public land, and infrastructure development
policies toward tapping via direct foreign investment the Islands’ natural
resources and potential as a market for US goods.
However actively the Insular Government sought to develop the
Islands by improving transportation and communication, increasing reg-
istered landownership, promoting irrigation projects, suppressing epi-
demics, and steadily Filipinizing the government “where this could be
done without sacrifice of reliability,”43 officials like Governor-General
W. Cameron Forbes believed that government’s role was not directly to
create prosperity, but primarily to create an environment conducive to
private capital investment, “the sine qua non of development and prosper-
ity.”44 Notwithstanding the intentions and initiatives of Taft-era officials,
American capital never flowed to the Islands, and public development
outpaced those initiated by the private sector.
Many obstacles hindered the entry of private American investment
into the Philippine colony. For one, Congress equated exploitation with
traditional imperialism and severely restricted the ability of American cor-
porations to own lands of the Philippine public domain45 and to develop
the Islands’ forest and mineral resources.46 Moreover, American sugar
beet interests feared competition from Philippine cane sugar and lobbied
to insert a provision prohibiting any member of a corporation engaged
in agriculture from being in any way interested in any other corporation
engaged in agriculture.47 This prevented the formation of conglomer-
ates and precluded Philippine subsidiaries of American corporations from
evading limits imposed on owning lands.
For another, there was little interest in major projects. Aware of how
railroads spurred the growth of the nineteenth-century US economy,
the War Department and the Philippine Commission decided to con-
struct an “extensive system of railroads” far beyond the Islands’ existing
120 miles of track. Unfortunately, only two bids covering a mere 700 out
of the targeted 1,233 lines were submitted,48 and railroad construction
was riddled with problems from the beginning. When the Philippine Rail-
way Company completed the twenty-mile congressional benchmark for
selling its Insular Government-guaranteed bonds in the United States, the
mainland was in the midst of a financial crisis. Worse, traffic was light
and revenues low.49 Golay opines that American enthusiasm for rail-
roads was perhaps misplaced in the Philippine context. In the Far East,
two-thirds of railroad revenues “came from passenger traffic generated in
countries and colonies with concentrated populations,” but the Philippine
colony “was relatively underpopulated, and its people, for the most part
led a subsistence existence on scattered islands.”50 Thus, despite Insular
Government support, the Philippine railroad companies were never prof-
itable and had to be bailed out constantly by the Insular Government,
which extended 25 percent of the Gold Standard Fund for short-term
loans to help meet construction costs and bought or marketed their bonds
through the Bureau of Insular Affairs.51
Apart from economic obstacles, the problem of corruption, both low-
level and high-level, might have created disincentives. Petty corruption
was exemplified by railroad company agents buying up the necessary land
from their owners at nominal figures, then reselling it to the company at
higher prices: “This swindle,” in Governor-General Francis Burton Harri-
son’s view, “had grown to gigantic proportions, and about nine millions
of pesos had been lost this way – a sum upon which the government
guarantee of four per cent interest on the bonds had to be met.”52
Higher up on the food chain were American insular officials who
parlayed their positions and access to privileged information for per-
sonal benefit. Golay notes that General Arthur MacArthur had initially
barred soldiers and civil servants from using public positions for private
gain. When American capital proved sluggish due partly to congressional
limitations on foreign investment and its failure to expand the Islands’
tariff preference, Philippine Commission members “were disabused of
expectations that colony’s development would be rapid” and thus lifted
restrictions preventing colonial careerists from engaging in outside busi-
ness activities “in the hope that such ventures would encourage devel-
opment.” Insular officials thereafter invested in agricultural and mineral
lands, practiced their professions, and engaged in money-lending opera-
tions.53
The most controversial of these dealings erupted into the so-called
“Friar Lands Scandal.” Because friar ownership of prime agricultural land
had aggrieved Filipinos during the Spanish regime, Governor-General
Taft decided to acquire these properties from the Roman Catholic Church
for the Insular Government to distribute to natives. While the Philip-
pine Organic Act limited the size of public domain lands that corpora-
tions could purchase, its friar lands provision designated these estates
as “public property.” Capitalizing on this inconsistent terminology,
Director of Lands Charles H. Sleeper and Interior Secretary Dean C.

Worcester maneuvered to amend the Friar Lands Act to exempt these
lands from alienation limits. After Congress allowed duty-free entry of
Philippine sugar in 1909, three large friar estates were soon sold to Amer-
ican interests, namely, the 55,000-acre San Jose estate, which New York
law firm Strong & Cadwallader arranged to purchase for a certain E.
L. Poole of Havana; the 55,000-acre Isabela estate over which a con-
sortium of American residents secured a lease with a right to purchase;
and the 13,000-acre Tala estate bought by Executive Secretary Frank
Carpenter. When congressional Republicans revolted against President
Taft, freshman Congressman John Martin of Colorado revealed to the
House of Representatives that Poole had bought the San Jose estate in
behalf of the Havemeyer-dominated American Sugar Refining Company,
or the Sugar Trust. This triggered a series of embarrassing disclosures
exposing the business activities of insular officials. Especially mortifying
to then President Taft was that his brother Henry W. Taft was a senior
partner in the firm that purchased the property and had been the sub-
ject of earlier Republican attacks for his role in disposing a criminal case
against Sugar Trust officers “accused of bribing customs officials to falsify
the weight of sugar shipments.”54
Finally, there existed widespread Filipino fear of private American
investment, which generated suspicion of the motivation underlying
government development initiatives, like infrastructure and sanitation
improvements. Stanley locates Filipino uneasiness, not in their failure
to appreciate the advantages of capital, but “from a fear that foreign
capital, insufficiently regulated and restricted, would take from Filipinos
that control of their own destiny to which they aspired.”55 Moreover,
cognizant of President Theodore Roosevelt’s efforts to regulate the abuses
and exploitative behavior of American conglomerates, Filipinos similarly
feared exploitation at the hands of big business.56 Lastly, Filipinos were
afraid that American corporations with established Philippine interests
would lobby Congress to retain the Islands in order to protect their
investments.57
Filipino leeriness toward private foreign capital was due to peren-
nial foreign domination of insular economic activity. After the Span-
ish colonial government abandoned its attempts to develop Philippine
agricultural export trade, British merchants filled the vacuum by financ-
ing producers and transporting products to England and beyond.58
Describing British imperial hegemony over nineteenth-century world
trade, economic historians P. J. Cain and A. G. Hopkins recount that
beginning in 1850, City of London bankers invested the “gentlemanly
capital” accumulated by their aristocratic landholding clients in foreign

ventures, such as trade in manufactured goods, commodities, and ser-
vices, and loans to foreign firms and nations. British firms came to domi-
nate world shipping, insurance, and commercial services,59 some of which
made their way to the Islands.60 British merchants partnered with Chinese
and Chinese mestizo agents, whose distribution networks bought prod-
ucts from farmers and brought them to merchants in the port cities. British
business presence was also pervasive in Philippine banking, shipping, bro-
kerage, accounting, and insurance, and British executives ran many Span-
ish and Filipino-owned businesses, such as sugar and tobacco concerns
and utilities like the Manila Railroad Company and the Manila Elec-
tric Company. So dominant was British business presence that a French
consul writing from Manila was quoted by historian Ifor B. Powell as
saying, “to all intents and purposes the Philippines are a British posses-
sion.”61 In addition to serving as agents for British merchants, Chinese
and Chinese mestizos controlled insular retail trade and soon expanded
into wholesale distribution and other lines of businesses.62 The coming
of the Americans did not dislodge these interests but only threatened
to entrench the new American interests.63 Thus, while Filipino mistrust
of the agenda underlying American public projects was allayed by their
expectation that they would someday inherit these improvements upon
independence, their apprehension over forever losing control of industries
yielded to private foreign interests was heightened by Taft-era economic
strategy.64
Because the Commission failed to develop the Philippine economy
through American enterprise, Governor-General Taft worked instead to
enlarge the Philippine export tariff preference under the 1902 Payne Tariff
Act in the hope that by making “the commercial bonds between the
two countries close and profit-giving to both, the Filipinos will love the
association with the mother country, and will be last to desire a severance
of those ties.”65 Taft lost no opportunity to promote the Philippine tariff
preference during Roosevelt’s presidential campaign and secured it in
1903, as part of relief measures to help the Philippine Islands recover
from a series of natural disasters that struck in late 1902.66 Addressing
the Harvard College Alumni Association in 1904, Taft projected that
taking the Islands behind the American tariff wall “will have a tendency
to develop that whole country, of inviting the capital of the United States
into the islands, and of creating trade between the islands and this country
which can not but be beneficial to both.” Given these benefits, he candidly
speculated, “ . . . is it wild to suppose that the people of the islands will
Conclusion 137
understand the benefit that they derive from such association with the
United States and will prefer to maintain some sort of bond so that they
may be within the tariff wall and enjoy the markets, rather than separate
themselves and become independent and lose the valuable business which
our guardianship of them and our obligation to look after them has
brought them?”67
Initially resisted by Filipinos as a ploy to increase the Philippine mar-
ket’s dependence on the American market, free trade proved to be a huge
boon to Philippine agriculture, especially the sugar industry. It created
enormous fortunes for Pampanga and Negros sugar elites, which they
translated into tremendous political influence. Financed largely by British
firms and controlled by Spanish and Chinese mestizos, this industry had
begun to consolidate and modernize during the late Spanish period,68
with exports rising from 15,000 to 150,000 metric tons from 1830 to
1890 and accounting for almost 60 percent of Philippine trade output.69
Anthropologist Michael S. Bilig surmises that the industry’s great money-
making potential inclined the American colonial state to be “favorably
disposed toward the sugar planters.”70 Of all the sectors of the Philippine
economy, sugar would reap the greatest profits and receive the greatest
government support during American rule. In this respect, American colo-
nial economic policies perpetuated rather than dismantled the supports
for elite dominance and native submission.
Left out in the flurry of insular economic development were Filipino
political leaders. Outnumbered by Americans in the colonial govern-
ment’s executive and legislative branches and relegated to the bureau-
cracy’s lower echelons, they found themselves institutionally unable to
meaningfully influence formal colonial economic policy. But Chapter 6
will show how they would take advantage of expanding political oppor-
tunities, notably the creation of an all-Filipino Assembly, to increase their
influence over the machinery that formulated and implemented policy.
Conclusion
Americans were neither the first nor the only imperialists to portray colo-
nialism as civilizing. Yet aspects of the American experience were gen-
uinely innovative and merit closer study. Rather than hope that Filipino
culture would be transformed in the course of extended contact, American
colonialism instead sought to supplant native culture with its own, creat-
ing an environment hospitable to the survival of their transplanted liberal
institutions. American colonialism was perhaps also first to conceive of
the civilizing mission in terms of the progressive and highly technical

paradigm of social engineering. Enabled by the expanded capacities of an
already intrusive Spanish colonial machinery, American colonial officials
particularized what “being civilized” meant in different areas of life –
political, economic, social – and in spheres both public and private, as
modeled after their own habits of life.
While James and John Stuart Mill advocated excluding India from
British liberalism, Americans did not exempt their Philippine enterprise
from their democratic and liberal constitutional tradition. Instead, colo-
nial policymakers, in an even more innovative move, felt impelled to
justify their work in the Islands as fully consistent with their constitutional
values and represented the Islands’ emerging constitutional tradition as an
extension – or “eddy,” in Justice Malcolm’s words – of their own. Ironi-
cally, however, the prime assumption and end result, whether of Britain’s
frank exclusion of India or America’s inelegant inclusion of the Philippine
Islands, were identical – it was to say to both Indians and Filipinos “not
yet.” That is, both British and Americans placed their respective charges
on a graduated training program along a particular development trajec-
tory and constantly found them inadequate, which further rationalized
deferring full inclusion.71 This constitutional legitimation of Philippine
colonialism, moreover, revealed anew the imperial potential of liberal
constitutionalism, where, much like America under British rule, control
was vested, not in a sovereign that was popular and immediate, but in a
foreign, distant, and remote hegemon. Finally, implementing the formal,
neutral, general mechanisms of the new liberal legal regime among an
unevenly civilized populace with unequal access to resources may have
reinforced the very submissiveness that American colonialism sought to
eradicate, because the system advantaged those with the wherewithal to
acquire resources, while preserving the class inequality that enabled them
to do so. And as the next chapter will show, capacity along with prop-
erty served as the universal, neutral, and abstract criteria for legitimate
participation, as social and economic advantage was compounded with
political power.
6
Popular but not Sovereign
Colonial Democracy and the Rise of

the Philippine Assembly
Addressing the Philippine Assembly’s inaugural session on behalf of Presi-

dent Theodore Roosevelt, Secretary of War and erstwhile Philippine
Governor-General William Howard Taft summarized in a single sentence
the representative, self-governing, and tutelary character of Filipino par-
ticipation in the Government of the Philippine Islands and the progress
that Filipinos had made by 1907:
As you shall conduct your proceedings and shape your legislation, you will show
more emphatically than in any other way your right and capacity to take part in
the Government and the wisdom of granting to your Assembly and to the people
that elected you more power.1
By telling the new Assemblymen “you shall conduct your proceedings,”

Taft emphasized that native officials under American rule, unlike those
under Spain or Great Britain, did more than provide government services
or serve as agents of indirect rule. Instead, executives and legislators on
the Insular Government’s local and central levels were chosen by and
accountable to “the people who elected you,” thus teaching natives to
govern themselves through leaders of their own choosing. Allowed to pass
laws before other colonial peoples, Filipinos learned that self-government
meant to be ruled by laws of their own making. The Assembly represented
the latest phase in the gradual Filipinization of the Insular Government. It
was both a promotion recognizing that Filipinos had passed earlier tests
of their “right and capacity to take part in Government” as well as a new
test on whose results hinged future grants of power.
Structural changes complemented this advancement in Filipino polit-
ical education. Moving closer to rule by law rather than by man, the
139
140 Popular but not Sovereign
1902 Philippine Organic Act more clearly separated the executive and
legislative branches and increased reliance on legal rules rather than per-
sonal suasion to regulate interdepartmental dealings. From a military
government that fused executive, legislative, and judicial authority in the
military governor, to a territorial government in which the Governor-
General and the Philippine Commission shared executive and legislative
powers, the Insular Government came to resemble the colonial govern-
ments of British North America. In this scheme, the Governor-General
was the chief executive, the Philippine Commission served as cabinet
and the new bicameral legislature’s upper house, and the new Assembly,
as the all-Filipino lower house. Combined with their minority presence in
the Commission, Filipino control of the Assembly greatly enlarged their
role in colonial legislation.
The Assembly’s advent also transformed the path to political power.
Henceforth, elections supplanted appointments as the primary mode for
selecting the highest Filipino political officials. Previously, only local gov-
ernment offices had been open to electoral competition, but the creation of
the Assembly enabled Filipinos to run for posts in the Islands’ highest gov-
erning body for the first time. This new selection mechanism introduced
new players, for favored under the new establishment were candidates
with provincial political bases. Not rooted in Manila like the favored
Federalistas, these new leaders did not rely entirely on American patron-
age for government jobs. As restrictions on speech and organization were
lifted at war’s end, nationalistic rhetoric emerged, which resonated with
the Filipino public and fueled the rise of the Nacionalista Party. Yet the
rise of new political actors did little to alter Filipino colonial politics’ elite
character, as property and literacy criteria for voting and office-holding
confined these activities essentially to ilustrados.
Creating an electorate to which Filipino leaders would be beholden
complicated the delicate balance between control and consent that kept
American colonialism consistent with her democracy. Full discretion over
appointments had enabled Americans to cherry-pick sympathetic Fili-
pinos with whom to collaborate, deem them representative of the people,
and construe their cooperation as consent. However, faced with elected
legislators answerable to a rival constituency, Americans in the colonial
executive increasingly exerted control through the constitutional rules
operationalizing the separation of powers. This cast political conflicts
between Americans and Filipinos colonial officials as interdepartmen-
tal contests between the executive and legislative branches. Specifically,
the Insular Government’s British North American design resurrected the
Winds of Change 141
storied contests between colonials in the lower houses of Assembly and

the Crown’s representatives in the executive. Turning American history
against their American mentors, Filipino Assemblymen under the young
Speaker Sergio Osmeña anchored their right to speak for Filipinos on their
status as the only directly elected members of the colonial government:
Because “the only popular representation resided in the representatives
elected by the colonists,”2 then “what has been said about the House of
Commons and the colonial houses or representatives has singular applica-
tion to the Philippine Assembly.”3 But despite such powerful precedents,
the Assembly did not reap the same success as its North American fore-
bearers. For built into the Pacific iteration were checks that had evolved
through American history to combat abuses of legislative majorities,
effectively foreclosing its insular prospects. And ironically, what mitigated
the Filipinos’ legal disadvantage was the personal concern of American
officials that too heavy-handed an assertion of their prerogatives would
unmask their colonialism as coercive rather than consensual.
Winds of Change
In his inaugural address to the Assembly, Taft recalled how hard he
had lobbied Secretary of War Elihu Root and the US Congress to cre-
ate this body in the Organic Act. As Philippine Governor-General, Taft
claimed to have assumed “a responsibility as guarantor of which I have
never sought to disavow”4 in urging the Senate Conference to restore
the Assembly section deleted by the full Senate from the House bill orig-
inally drafted by Root. The Assembly proposal itself was neither new
nor controversial, having formed part of the Schurman Commission’s
package of recommendations. But the US Senate’s reluctance bespoke
a sense among many Americans that Filipinization was progressing too
rapidly. Yet there was a risk that the cooperation that betokened assent to
American rule would be jeopardized if Filipino demands for greater par-
ticipation went unheeded. Thus then-Secretary of Commerce and Police
W. Cameron Forbes defended the Philippine Commission’s unanimous
resolution requesting President Roosevelt to call for Assembly elections
after the Philippine-American War ended in 1902 and the first census had
been taken in 1903 and published in 1905, saying that “to refuse any
longer to give the Filipinos their legislative assembly” despite peace exist-
ing in the Islands “would be in the nature of making an excuse.”5 Yet
while momentarily appeasing Filipino demands, the new Assembly upset
the precarious dynamic struck by Taft and his Federalista collaborators.
Changing Patrons
Even before the Assembly convened, change had been under way. Taft’s
dealings with leading Federalistas were genuinely cordial. He highly
regarded Chief Justice Cayetano Arellano and numbered Commissioners
Trinidad Pardo de Tavera and Benito Legarda among his close friends.
Because they were personal, these relationships were highly contingent.
Dependent on Taft’s patronage, the Federalistas’s status as the Filipino
people’s representatives and the monopoly this afforded them over gov-
ernment jobs were also contingent.
These arrangements’ instability was revealed when Taft left the Islands
to become President Roosevelt’s Secretary of War. His successor Luke
Wright abandoned Taft’s policy of “The Philippines for the Filipinos” in
favor of “equal opportunity for all,” ceased consulting Federalista lead-
ers and filling appointments from their ranks,6 and instead cultivated a
new, predominantly non-Filipino clientele. He also pushed through laws
unpopular with Federalistas, such as the Internal Revenue Law, and pre-
ferred military pacification over his predecessor’s “policy of attraction.”
Slighted Federalistas thus engineered a national effort vilifying Governor-
General Wright and his policies, which led to his ouster and recall.7
Changing Clients
Ultimately, however, Federalistas were dislodged by the introduction of
elections, initially with the office of provincial governor in 1902 and
to Philippine Assembly seats in 1907. Elections paved the way for new
leaders with a stronger claim to representing the Filipino people. Because
governors and assemblymen were elected by district and Federalistas did
little to expand their base beyond Manila, provincial ilustrados harnessed
their networks to capture power on the local and national levels. Of the
new Assembly’s 80 seats, non-Manila ilustrados won 63.8 Provincial
governors captured most of these seats. They embodied the new breed of
Filipino leaders who had honed their political skills under American rule
and would dominate Philippine politics till the end of the colonial period.9
With most of the population unqualified to vote,10 politics remained an
elite affair, albeit with new players.
This younger generation’s standout was Cebu Governor Sergio
Osmeña, who became Speaker of the Philippine Assembly, Senate Presi-
dent Pro Tempore, Vice-President and President of the Philippine Com-
monwealth. His exemplary career illustrated the new path to power
through electoral competition. An ilustrado lawyer and journalist,
Osmeña was related by blood and marriage to the wealthiest and most
Winds of Change 143
powerful families in Cebu and capitalized on these connections to fuel

his rise. Historian Michael Cullinane writes that despite his nationalist
leanings and ties to Federalista opponents in Manila, Osmeña demons-
trated ability and willingness to work with the American regime that
reassured and impressed American officials. Neither strident nor incen-
diary, his editorial critiques for the opposition newspaper El Nuevo Dia
were measured, respectful, well-reasoned, and displayed “a firmer grasp
of the rhetoric of American government and political traditions.”11 His
dynamic leadership as fiscal and governor also caught the eye of Amer-
ican Commissioners in Manila, notably, the future Governor-General
Forbes.12 When the national convention of governors met in Manila in
1906, he emerged as its head and began formally aligning his provin-
cial allies with Manila ilustrados organizing the Partido Nacionalista to
challenge the Federalistas in the upcoming Assembly elections.13
After the Insular Government relaxed restrictions on political expres-
sion when the war ended, nationalistic but marginalized Manila ilustrados
criticized Federalistas for not representing the Filipino people’s true ideals
and advocated gradual and eventual independence in tempered terms. As
Assembly elections loomed, Federalistas sensed broad support for their
rivals’ nationalist platform, prompting them to abandon annexation for
independence through progressive stages and to rechristen themselves the
Partido Progresista, thereby shedding their association with Americans.
Having focused on obtaining appointive offices from American officials
in Manila, however, Progresistas had not built sufficient linkages to the
provinces, failed to field candidates in all 80 districts, and won only
18 seats. They lost to their nationalist rivals who had forged a coali-
tion behind Osmeña and catapulted the young provincial governor to
the Speakership.14 As the majority party head and the Islands’ highest-
ranked Filipino, Osmeña began to lay the foundation for the long-term
Filipino response to American colonialism as he wrangled with Governor-
General Forbes within the parameters fixed by the Philippine Organic
Act.
Having occasioned the advent of new Filipino leaders who campaigned
with aggressive nationalistic rhetoric, the Assembly promised to trans-
form the colonial political dynamic. Faced with more intractable Filipino
legislative partners, the Philippine Commission’s American majority
anticipated greater conflict and spent its last session preceding the new
Assembly’s inauguration “slapping out laws at a great rate” covering
“measures likely to be unpopular with the people but necessary.”15 On
October 12, 1907, which then-Commissioner Forbes described as “the
day of all days in the lawmaking history of the Islands,” the Commis-
sion passed “every law that has been under consideration,” number-
ing 25, in a marathon session running from “eight to seven with two
hours out.”16 Among measures enacted during this preemptive session
were laws enhancing executive power over Filipino-held local government
offices and increasing executive control over appointments to the insu-
lar administrative bureaucracy.17 Cynical as these tactics were, American
Commissioners likely felt vindicated when they subsequently saw many
of their pet projects stymied by the Assembly. “Part of the price” that
Forbes felt he paid “for not being Governor-General during the period
when the Commission was the sole legislative power in the Islands” was
that it took him three years to shepherd irrigation and cadastral laws
through both houses of the Insular Legislature.18
The Philippine Assembly’s Quest for Power

The fears of the Philippine Commission were not unfounded. Taft’s inau-
gural address had portrayed the Assembly as the next test of Filipino
capacity for self-government,19 and Speaker Osmeña acknowledged the
opportunity that the Assembly provided to “demonstrate the political
and governmental capacity of the representatives of the people,” which
proved “the capacity of the people from whence they came for complete
self-government.”20 Yet, with his Nacionalista contingent capturing 57
out of the Assembly’s 80 seats21 on a platform of complete, absolute, and
immediate independence, Osmeña saw the Assembly as the new battle-
ground, albeit a peaceful one, to which Filipinos had shifted their war for
independence and where they sought to “win in peace what they had lost
in war.”22 By framing Filipino participation in the Insular Government,
not as collaboration, but as a struggle, Osmeña implied that Filipino and
American interests were divergent, even opposite. This national interest
became bound up inextricably with independence, creating an incentive
to hasten the pace of Filipinization according to measures independent of
the American criteria for capacity and translating nationalism as a contest
for control between Americans and Filipinos in government.
Resurrecting Strategies and Theories

The Philippine Assembly’s first year was uneventful, but it proved to be
the familiar calm portending a gathering storm. For the very next year, the
Assembly fired its opening salvo with a bill reducing Insular Government
The Philippine Assembly’s Quest for Power 145
salaries across the board in order to bring American pay rates down to
Filipino levels.
Through American salaries, Osmeña and the Nacionalistas appropri-
ated long-standing Filipino grievances against Americans in government
to drive a wedge between the Filipino people, on the one hand, and
Americans and their collaborators, on the other. Long resentful of Fed-
eralista monopoly over offices, Nacionalistas portrayed their rivals as
Americanistas, rather than Filipinistas, and their concord with Taft as
lacking Filipino consent. Vindicated by electoral victory, they invoked
the theory of direct representation to claim, first, for the Assembly, and
later, for their majority Nacionalista Party, the sole right to designate
who comprised the Filipino people and to articulate their consent in their
name.
By targeting American salaries, the Assembly also wielded a weapon
used by American colonial assemblies against British royal officials.
When the organic acts resurrected eighteenth-century structures to house
twentieth-century roles, they effectively channeled conflict along familiar
grooves, for these precedents bore tremendous potential. On behalf of
the American populace that elected them, British North American colo-
nial assemblies seized the prerogative to defend American rights and
liberties against colonial and metropolitan royal authorities and suc-
ceeded in holding the performance of many important government func-
tions accountable to them.23 These tactics served their tropical ana-
log in its own contests against American colonial executives – up to a
point.
When the Philippine Commission vetoed its salary bill, the Assembly
attempted next to usurp control over government finances. Rejecting the
Commission’s budget bill, the Assembly insisted on the exclusive right
of lower houses in the Anglo-American tradition to originate appropria-
tions measures, though took care not to overreach. If Americans feared
dispelling the illusion of Filipino consent, Filipinos worried that their
restiveness would be construed as failure to learn their lessons in self-
government. Thus Osmeña had to demonstrate mastery of the emerg-
ing common constitutional tradition by framing Filipino claims squarely
within its terms and maneuvering within the legislative role to which
Filipinos had been confined and conformity with which gauged their
capacity. Because the Organic Act did not explicitly authorize the Assem-
bly to initiate money bills, Osmeña invoked the Anglo-American tra-
dition’s link between representation and taxation – that is, the theory
that “the people” were entitled to consent to taxes directly through their
own assembly representatives.24 As the Insular Government’s sole elective
branch, the Assembly alone could claim identity with the Filipino people
and consent to taxation on the people’s behalf. Thus did “the people”
become a “power word”25 in the Filipino democratic political tradition as
in the American tradition that engendered it. Consequently, W. Cameron
Forbes, who became a Commissioner in 1904 and Governor-General in
1909, recalled, “the Assembly adopted the practice of refusing its con-
currence, not on the merits of the bill, but on the ground that they wished
to establish the precedent of all general appropriation bills originating
with them.”26 Beginning 1911, the Assembly uniformly argued in a series
of resolutions that since the Philippine Legislature was organized “in the
likeness of the organization of the Congress of the United States,” then it,
too, could claim this same prerogative.27 This deadlock led to the failure
to pass appropriations acts until the Taft era’s end in 1913.
Along with increasing Filipino presence within the Insular Govern-
ment, the Philippine Organic Act also provided for two nonvoting Resi-
dent Commissioners to represent the Islands before the US Congress. The
election of these two delegates furnished Osmeña with the opportunity
for resurrecting and expanding the theory of direct representation when
he invoked it to justify blocking the appointment of the Philippine Com-
mission’s Progresista nominee. His larger goal was to lodge exclusively
in his ruling Nacionalista Party control over the main source of official
patronage, namely, the power to appoint government personnel.
Section 8 of the Philippine Organic Act required that the Islands’ two
Resident Commissioners “be chosen by said Legislature, each House vot-
ing separately. . . .” Prior to 1909, both legislative houses construed this
separate vote requirement to mean that each house would choose its own
Resident Commissioner “as special representatives of the views of each of
the two Houses.” Thus, in the Assembly’s first year, the Commission nom-
inated Taft’s personal friend Benito Legarda, a Progresista Commissioner
from Manila and one of the first three Filipinos appointed to the Com-
mission in 1901, and the Assembly chose Pablo Ocampo, a Nacionalista
Assemblyman. Each house then approved the other’s nominee. The next
year, the Assembly nominated Majority Floor Leader Manuel L. Quezon,
whom the Commission accepted, but rejected Legarda when the Com-
mission resubmitted his name, claiming for the first time the sole right
to select both of the Islands’ Resident Commissioners. The Commission
nominated Legarda seven more times, only to be blocked by the Assem-
bly by widening margins and unanimously rejected in the eighth and final
vote.28 Voicing American fears that open antagonism between the two
bodies threatened American rule’s consensual supports, Vice Governor
Newton Gilbert lamented as a “very serious matter” the impression “that
the cordial sentiment heretofore existing does not any longer obtain”
because “government can only proceed well with the cordial cooperation
of all responsible officials.”29
Forbes had defended the Commission’s right to designate one Resi-
dent Commissioner by portraying him as the Commission’s representa-
tive to the home government.30 In response, Osmeña cited the Northwest
Ordinance’s Territorial Delegates as the model for Resident Commis-
sioner pointed out that this officer had never represented “the Govern-
ment, the Administration, the Legislature, or either of its branches,” but
has always represented the people. Against Forbes’s contention that the
Philippine Commission was merely the US president’s creature in the
Islands and that, therefore, the Resident Commissioner ultimately repre-
sented the president before the home government, Osmeña deployed a
move reminiscent of Parliament’s invocation of the divine right of kings
to hold the Stuart kings’ actions to god-like standards.31 Acknowledging
that while President Taft “may, as a man . . . feel inclined toward this
or that person,” Osmeña argued that the US president, as president –
that is, in his “legal body” – “can not and must not and will not force
upon himself a man of his own for the simple reason that in order to
know his own ideas . . . the President is sufficient unto himself.” And far
from attributing to the president ideas containing “the most absurd pos-
sibilities,” the Assembly chose to believe that the president could not
“advocate theories that destroy the foundations laid by him and belit-
tle the concessions that have cost him work, the magnitude of which
he has not denied.”32 For to construe the separate vote requirement
as entitling the Commission to send an agent who was “not a repre-
sentative of the people, but the creature of the Administration,” would
“usurp” the representation granted to the Islands for the sake of proce-
dure. Representing “no advance towards self-government,” such usurpa-
tion violated America’s “most solemn promises” that “powerfully influ-
enced the result of the war” to provide Filipinos through institutions like
the Resident Commissioner genuine opportunities to hone their capacity
for self-rule.33 Sounding this nationalistic theme, Osmeña launched the
Filipino strategy that translated independence as control over the colonial
machinery.
Beyond the Assembly, however, Osmeña claimed the benefits of rep-
resentation for his majority Nacionalista Party. Because the Resident
Commissioner was “essentially a political office,” Osmeña rejected

Forbes’s position that he need not “belong to any political party, whether
Progressist or Nationalist.”34 Rather, requiring the delegate to be both
“an active member of one of the recognized political parties” as well as
“indorsed by the same” was “inevitable.” Pointing out that in America,
“the great motive forces are the parties,” the Speaker and Nacionalista
Party chief elevated to normative status the situation of party dominance
in American politics and concluded that “in all political matters the polit-
ical parties should at least be consulted”; otherwise, “they are superfluous
and should be dissolved.”35 Equating the Filipino people with both the
Assembly and his majority Nacionalista Party unified Filipino leadership
and debunked an American justification for denying Filipino nationhood,
namely that the Islands’ inhabitants were not “a people,” but a collection
of tribes. This exclusive agency also linked Filipino control to Nacional-
ista control and laid the ideological foundations for the party’s monopoly
over sources of government patronage that would help its members win
elections and stay in power.
The Commission refuted Osmeña’s novel take on direct representa-
tion by reviving the notion of virtual representation.36 It argued, first,
that neither the Assembly nor the Commission “alone represent the peo-
ple or the Government,” but the “two bodies must be united to constitute
a branch of the Government representing the whole people.” That is, “the
Assembly and the Commission together represent the Government and
the people, the interests of both being in common and not opposed to
each other.” Thus, the appointive Commission’s claim to the Filipino
people was no weaker than that of the elective Assembly’s, because it was
“charged with the duty of seeing that the Government here established
is for the benefit of the whole people.”37 And because limited suffrage
excluded a majority of inhabitants from expressing their political pref-
erences, the Commission then rejected Osmeña’s contention “that the
two Resident Commissioners should necessarily be members of either the
majority or minority party of the Assembly.”
Unfortunately, the Commission was trumped by the very constitu-
tional rules that were expected to keep Filipino legislators in line. Deriv-
ing the Commission’s “political-historical origin” from the old appointed
councils in the British North American colonies that “never succeeded in
being recognized as representatives of the people,” Osmeña highlighted
the irony in the Commission’s attempt to “claim any popular representa-
tion for itself.”38 Because the colonies’ political history reveals that “the
only popular representation resided in the representatives elected by the
colonists,”39 then “what has been said about the House of Commons
and the colonial houses of representatives has singular application to the
Philippine Assembly.” As “the only genuinely Filipino institution” in the
colonial government, “it is natural that the Filipinos should attribute to
it a character of exclusive representation,” which was nourished by the
sap “that comes direct from the people, by means of suffrage.”40 Osmeña
thus rejected virtual representation as outmoded by America’s own tra-
dition, maintaining along “with the emancipated American colonies that
the only true representation is that which comes from the people.” Con-
sequently, he denied the Commission’s claim to equally represent the
Filipino people with the Assembly, “just as the Americans denied, with
more than sufficient reason, that such representation was vested in the
local councils and attributed such representation solely and exclusively
to the elective houses.”41
But Osmeña’s theory conflated representation with sovereignty, and
the Commission called out his sleight of hand. It reminded the Assembly
that, despite being elected by the Filipino people, it “must not forget the
fact that its authority emanates from a sovereign power” and even if
“participation in the Government has been granted to the Filipinos, self-
government has not been so established in these Islands.”42 Yet in a
colonial democracy that was popular but not sovereign, the voice of “the
people” still carried weight. As seen earlier, American colonial officials
religiously demonstrated their program’s correspondence with Filipino
desires. Similarly, ilustrado representatives gained immediate access to
America’s powerful popular tradition to challenge American claims and
interpose their own program.
A Whiggish Ending
Parallels in strategies and arguments notwithstanding, the Philippine
Assembly did not duplicate the accomplishments of its historical precur-
sors. Charting the rise from subordination to supremacy of the southern
royal colonies’ representative assemblies, the historian Jack P. Greene
identified four areas over which these bodies wrested important pow-
ers from British Governors and Councils. Specifically, they secured con-
trol over finances, such as the right to frame money measures and to
demand accounting for expenditures; over civil lists, such as the right
to determine salaries and fees; over their composition and proceedings;
and over the performance of executive affairs, such as the selection
or supervision of revenue officers, colonial agents, judges, and public
commissioners.43
By contrast, the Philippine Assembly’s two dramatic challenges against

the Philippine Commission only minimally affected the Insular Govern-
ment’s design and operations. By specifying that the Philippine Assem-
bly and the Philippine Commission each select one of the Islands’ two
Resident Commissioners, the Philippine Organic Act eliminated the kind
of ambiguities that had enabled American colonial assemblies to seize the
right to name and direct resident agents to London.44 When the Assem-
bly attempted to circumvent this explicit provision and the Commission
refrained from enforcing its literal terms, the US Congress easily broke
the impasse between them by passing a special law providing that “the
present Resident Commissioners shall hold office until their successors
shall have been duly elected and qualified.”45 This constituted Manuel
Quezon as the Island’s sole representative before the home government
until the Assembly finally accepted Manuel Earnshaw as the Commis-
sion’s new candidate in 1912.
Potentially more crippling to the Insular Government was the appro-
priations stalemate. By refusing to pass revenue bills, the British North
American lower houses of assembly held colonial governments hostage
and stalled their operations until they won the right to originate all money
bills and supervise their disposition.46 But while a similar deadlock in the
Islands resulted in no budget bill being passed from 1911 to 1913,47 the
Insular Government functioned continuously, because Congress had built
into the Philippine Organic Act a safeguard called “automatic appropri-
ations” authorizing the Governor-General to revive the previous year’s
budget in case the two legislative houses failed to agree on appropria-
tions. To implement this provision, Governor-General Forbes adopted
a Puerto Rican precedent that gave him full discretion to reallocate the
lump sum corresponding to the previous year’s appropriations.48 Thus,
rather than strengthen the Assembly, the appropriations deadlock even
increased the Governor-General’s control over public finances by allow-
ing him to substitute the legislature’s spending priorities with his own.
To release funds, the Governor-General had merely to send the Insular
Treasurer an “advice,” which “was drawn in the form of an appropria-
tion bill with the same classifications, divisions, and subdivisions, and the
same limitations and provisos” and which “served as the appropriation
act and was in fact the law governing appropriation of public moneys for
general expenses of the ensuing year.”49
Before the Philippine Assembly’s maiden session, the Philippine Com-
mission, as earlier discussed, installed its own fail-safes. In exchange for
passing revenue bills, American colonial assemblies had channeled to
their own commissioners or supervisory committees the right to oversee
expenditures of public funds. Legal historian Christine A. Desan recounts

that colonial New York’s assembly even won the right to adjudicate
money claims filed pursuant to special and, later, general revenue mea-
sures.50 But the Commission precluded the Assembly from acquiring sim-
ilar oversight authority by creating the office of the Insular Auditor.
Becoming a “bulwark of executive power,” the Insular Auditor enjoyed
“broad power over the accounts of the insular government and exclu-
sive jurisdiction in determining the legality of all transactions involving
these accounts,” and his decisions were reviewable, not by local courts,
but by the “head of the executive department involved.”51 To begin
with, it would have been much more difficult for the Philippine Assembly
to usurp government operations from executive hands after the fashion
of the colonial assemblies, for compared to the more rudimentary and
fluid British North American colonial administrations, the Insular Gov-
ernment’s more functionally specialized Spanish apparatus had clearly
routed to the Governor-General authority over all government offices,
which were subsumed into the executive branch.
While providing the Assembly with pertinent models of legislative resis-
tance, the American colonial assemblies’ utility as precedent was limited,
for their saga did not end with the American Revolution, but with the
backlash against legislative despotism that culminated in the Philadelphia
convention. Now canonical is the account of how founding Americans
honored the lower houses’ heroism in protecting American rights against
British incursions by strengthening the popular element at the expense of
the magisterial in the new state governments. When the over-powerful
mostly unicameral state legislatures acted as despotically as monarchs,
Americans of the founding generation realized that what mattered was
not which branch held most of the power, but how much power was
vested in each branch. As Chapter 3 notes, constitutional reform at the
state and federal levels attempted to check majoritarian tyranny in the
legislatures by more evenly distributing government functions within and
between state and federal government units. Disassociating the legislature
from “the people,” the Framers of the US Constitution instead character-
ized “the people” as a unitary sovereign separate from the government
that allocated measures of their sovereignty among federal government
departments, federal and state governments, and branches within the state
governments.52
By the time Filipino Assemblymen mimicked their illustrious forerun-
ners, they referenced an institutional dynamic transformed by lessons
learned from the postrevolutionary career of American legislatures.
Hence, containing the Filipino people’s representatives within the leg-

islative branch effectively brought to bear the weight of the American
tradition’s long-standing anti-majoritarian bias as a silent, subtle means
of exerting colonial control over Filipinos in the lower house and, even-
tually, the entire Insular Legislature. In turn, this Whiggish tradition was
infused into the Islands’ Hispanicized institutional context in which the
American Governor-General enjoyed an executive supremacy derived
from its original animating theory of absolute monarchy. This consti-
tuted the Governor-General, who once represented and extended the
Spanish King’s power over the colonies, as a colonial monarch. Because
the Assembly deployed now neutered tactics within such an uneven con-
stitutional terrain, its failure to reproduce in the Islands the gains of the
American colonial assemblies seems not only comprehensible, but also
inevitable.
Thus, statutory and jurisprudential separation of powers mechanisms
did not curb imperial power as promised. Devised to restrain a popular
sovereign, early twentieth-century separation of powers severely hand-
icapped a body that was popular but not sovereign and failed to con-
strain the true source of tyranny in a colonial executive who labored
without meaningful limits in the unincorporated territory that was the
Philippine Islands. Yet American officials were loathe to assert their insti-
tutional superiority, lest they expose American colonialism as coercive
and therefore inconsistent with American tradition. As the final section
will demonstrate, the need for legitimacy overrode questions of legal-
ity, and American concern for Filipino consent masked their completely
constitutional supremacy within the Philippine colonial order.
Colonial Collaboration: A “World of Give and Take”

Heated and dramatic, public confrontation between Commission and
Assembly masked a great deal of private cooperation. To some degree,
these pitched battles were staged to reassure the Filipino public that their
representatives were working hard toward independence and not co-
opted by the colonizer. Transforming the institutional context altered
the nature of colonial conflict and modes by which Filipino consent was
courted and conveyed.
With an enlarged Filipino role in legislation, Filipino assent to
American colonialism would henceforth be gauged by the Assembly’s
enactment of Commission-initiated measures. Girding himself for bat-
tle with the new lower house, then-Commissioner Forbes sought to
Colonial Collaboration: A “World of Give and Take” 153
augment his influence with its members and especially its leaders. During
the Assembly’s inauguration, Forbes recalled that he “amused myself” by
reviewing “the faces of the deputies to learn them as much as possible and
to see how many I knew.” Knowing only “twenty-three personally” of
the 80 Assemblymen, Forbes decided, “I must increase this.”53 Believing
that he would “make a profound impression in the States” and seeking
to test his “own power of persuasion in the Assembly,” Forbes “thought
it would be a very good thing for the Assembly to make its first official
act – a resolution telling the President that they were ready to do busi-
ness” under US and Philippine laws and enlisted Osmeña and Quezon
to secure its passage. Expressing the Filipino people’s “direct thanks to
those of the United States for the concession granted them in partici-
pation in their legislation,” this resolution “was so carefully worded as
not to raise the question of independence directly,” which War Secretary
Taft had expected as the Assembly’s first demand. When the resolution
passed without amendment or opposition, Forbes congratulated himself,
interpreting the event as confirmation that “the first act of the Assembly
is rational and conservative and tends to justify Secretary Taft’s pol-
icy” and “contributory evidence that I was strong with the Philippine
people.”54 Aware that his success as Governor-General under the new
disposition would be measured by the frictionless adoption of American-
sponsored measures, Forbes was elated when both houses unanimously
passed a railroad concession for which he had lobbied. “Had I failed,”
Forbes acknowledged, “Washington would have good reason to believe I
couldn’t swing the Assembly here and they’d better look for another man
to run the government”; thus, the Harvard graduate “felt more or less as
though I had won a Yale game” when he received word from Quezon of
the concession’s passage.55
Both Harvard man and Boston Brahmin, this grandson of Ralph Waldo
Emerson was an investment banker who was recruited to lend his finan-
cial and railroad development expertise to a Commission dominated by
lawyers and academics. Patrician and pragmatic, Forbes believed that its
altruism made America’s benevolent imperialism superior to traditional
imperialism and that her modernizing mission greatly uplifted the Islands’
quality of life. Interpreting civilization in material terms, Forbes’s name
became synonymous with infrastructure development, notably roads. For
this, natives christened him “caminero,” or “road-builder,” playing on
his middle name “Cameron.” Resigned that representative government
was “one of the great movements of the day” and that “in all civilized
countries it is found that better results are obtained by trusting the
individual and awakening his sense of responsibility,” he felt, like Secre-

tary Root, that education was “an essential prerequisite to participation
in the movement, whether of government or business” and without it,
“disaster inevitably follows placing powers in the hands of an illiter-
ate, uneducated, or oppressed peasantry.” Because Filipinos lacked this
education, Forbes longed for the efficiency of British or Dutch-style colo-
nial administration and pronounced American government “poorly orga-
nized to care for dependencies.”56 His paramount commitment to pro-
viding good government made him impatient with maneuvering within
democratic politics and constitutional checks and balances in both colony
and metropole and inclined him toward expedient solutions.
Forbes understood that preserving smooth dealings in the face of overt
challenges sometimes entailed recognizing that it was “politically disad-
vantageous”57 for Filipino legislative leaders not to resist the colonial
government. As it had impelled American colonial officials to seek new
avenues of cooperation, opening up the central legislature to electoral
representation compelled Filipino leaders to play to two constituencies
whose support ensured their hold on power. Victorious with an inde-
pendence platform, Nacionalistas spewed fiery independence rhetoric to
keep winning elections and cement their status as the Filipino people’s
spokesmen before the colonial sovereign. After closing the Assembly’s first
session with a plea for independence and passing a resolution authorizing
Quezon, the newly elected Resident Commissioner, to request Congress
for its grant, Speaker Osmeña rushed to Governor-General Forbes’s office
to explain that “he had to give his party a little ammunition to get them
in line for reelection.”58 Indeed, Forbes understood that “to hold his
position,” Osmeña felt it “necessary to proclaim his adhesion to inde-
pendence, and talk on the blood of patriots, and the loved flag, and the
proven capacity of Filipinos.”59 Notwithstanding their public pronounce-
ments, Filipino politicians were privately less sanguine about Philippine
independence and reassured American colonial officials that their lead-
ership posed no threat to colonial control. Indeed, Osmeña confided to
Forbes at the end of his tenure as Governor-General that “they didn’t
really want independence, only an extension of power.”60 In tandem,
both strategies safeguarded their leadership role in the American colonial
polity, and Nacionalistas oscillated between both poles.
To Forbes, the appropriations dispute was standard political the-
ater, for there was evidence that Nacionalistas seized upon the issue
to score political points against the minority Progresistas. Having cam-
paigned to lower government spending, Nacionalista Assemblymen in
legislative committees examined bureau operations only to realize,

“almost without exception,” that these bodies required larger appropri-
ations. As these findings “did not square with their campaign pledges,”
Nacionalistas found themselves in a predicament,61 especially because
Progresistas intended to propose deep cuts and “then go before the peo-
ple as the real economists.” To preempt Progresistas, Nacionalistas sent
an Assembly bill to the Commission calling for even larger reductions,
but “it was perfectly evident [to Forbes] that an apparent decrease was
what was wanted rather than a real one.” The Assembly and Commission
in special session agreed to moderate cuts in the general appropriations
act, but “compensated in part” by a special act.62 Progresistas and the
press promptly accused Nacionalistas of selling out, leading Osmeña to
hint to Forbes that “a difference of opinion on some important mat-
ter would be a good strategy,” because “the people think we are too
much in accord.” Forbes thought this statement presaged “a drive against
the coming of outside capital,” but realized that it was “Osmeña’s tact-
ful way of saying that the political exigencies of the situation required
that the harmony which had existed since the beginning should be bro-
ken in certain important particulars” and that he “really meant a dis-
agreement on the appropriation bill,” since “this is what it came to
later.”63
Nacionalista cries for economy might have rung hollow to Forbes,
for these public servants were not averse to public spending, save per-
haps on American salaries. Because Commission members were com-
pensated annually while Assemblymen were paid per diem, a 1907
appropriations act paying the latter $15 per day to sit in a joint com-
mittee serving during recesses of the Insular Legislature “created a
precedent fraught with grave consequences” that induced Assembly-
men to multiply recess committees.64 Moreover, Assemblymen gen-
erally supported the Commission’s “constructive measures,”65 which
tangibly proved to their constituents their effectiveness in promoting
their districts’ interests in Manila. Thus “there was never any difficulty
in getting liberal appropriations” for business, labor, public health, edu-
cation, and especially public works.66 Impressing Forbes as an “adroit
performance,” Speaker Osmeña doubled the cedula, or Spanish-era poll
tax, to finance provincial road construction.67 The Assembly also gave
the Governor-General discretionary authority over public works funds,
enabling him “to release money for one project while withholding it from
another.”68 While apparently insincere, the clamor for austerity furnished
Nacionalistas the pretext for launching the proven strategy of controlling
appropriations to vindicate their genuine desire to expand their autonomy

within the colonial constitutional order.
But for the most part, cooperation was the order of the day. With the
Assembly’s competence linked to its ability to pass its own bills, Forbes
decided at the end of the Assembly’s inaugural session that “it has to be
a world of give and take, and, as long as there was no real damage to the
general situation in a bill, we thought it advisable to pass all we could in
conscience.”69 Against the Commission’s well-researched and carefully
drafted bills, historian Frank Golay contrasts the Assembly’s numerous
sloppy bills that concerned “trivial” or “purely local matters.”70 Sensitive
to what he perceived as the Assembly’s need to save face, the paternalistic
Forbes criticized the Commission for being “a little too prone to consider
themselves a superior body” and for thinking “that they could turn down
150 bills fathered by different men of the Assembly and not arouse a
spirit of retaliation.” Instead, he wished they would follow his practice of
“persuading some member of the Assembly to originate” bills, “and then
amending them when they came up” but “leaving them with the title of
the Assembly bills introduced by such and such a delegate.” Despite blur-
ring intradepartmental boundaries and bypassing constitutional checks
that risked teaching Filipinos wrong lessons in separation of powers, the
Commission “would have got their measures just the same and the net
result would have been that we should have passed a great many more
bills apparently originating in the Assembly and not had to turn down
so many, expecting all the while many bills originating in the Commis-
sion to receive approval.”71 In brief, Forbes kept in mind the big picture,
even offering Osmeña concessions to “carry important measures along.”
In exchange for a bill prohibiting the importation of docked horses, or
horses with amputated tails, Forbes, an avid polo player, steered through
“a pet measure of the Speaker’s” to establish a hot springs sanitarium in
Cebu, which “couldn’t possibly have passed the Commission if I hadn’t
made a point of it.” He explained their reciprocal dynamic thus: “I try
to get a few of the Speaker’s favorite measures through each session as a
matter of courtesy to him, always providing there is nothing improper or
vicious in the principle, and he reciprocates.”72
Cooperation extended to bailing out the Assembly in 1909 when it
had “overrun their appropriations and got into debt.” Forbes called this
“the most serious offence that can happen to a government office,” which
made a mockery of Nacionalista campaign promises of austerity. Needing
the Commission’s vote “to help them out of a hole,” the Assembly, “in
their effort to save themselves, passed a law authorizing the Governor-

General in his discretion to use the funds of any bureau for any other
bureau, or to revert to the treasury any unexpended balance of any
appropriation for a bureau.”73 In subsequent years, Forbes used this
authority to make up the Assembly’s deficiencies without having to seek
more visible deficiency appropriations.74 Again escaping constitutional
confines, collaboration paid off for the colonial executive, since the mea-
sure had given the Governor-General “absolutely unheard of power.”75
To scale back executive discretion, Nacionalistas sought in 1912 to cap
the amount that could be used to meet deficiencies at $250,000, which
the Commission allowed.
But cooperation had its limits. A compromise over appropriations
would have passed, but for a Progresista filibuster. By 3:00 a.m. word
had leaked out that “the Speaker could no longer control the Assembly,
and that the bill was going to fail.” Forbes attributed the breakdown not
“to any unreasonableness on our part but just to the determination on the
part of a few irreconcilables to prevent an agreement which they thought
would look like friendly cooperation with a government they felt sure was
going to be put out pretty soon when the new administration came in.”
In this, Forbes conceded, “they were more or less justified by results,”
since Democrats had campaigned on Republican failure “to agree in the
matter of appropriations for several years.”76 Thus, publicly skirmishing
with American colonial officials gave Nacionalistas political mileage with
both the Filipino electorate and the new Democratic administration that
came to power in Washington in 1912. Of the two strategies, what held
greater potential to expand Filipino autonomy in the long run, whether
or not independence was ultimately their goal, was not so much collabo-
rating with the colonizer, but posing as ardent advocates of independence
on the Filipino people’s behalf. Although constructive, cooperation ren-
dered Filipino leaders vulnerable to charges of complicity and insincer-
ity, which often spelled electoral defeat. Heroically battling Americans
enabled Filipino legislative leaders to refresh their mandate from what
Osmeña called the sap “that comes direct from the people, by means
of suffrage.”77 Empowered by rhetorical devices that American popular
sovereignty commended to the people’s representatives, Osmeña and his
allies scored important symbolic victories that would ripen into concrete
gains in power when Woodrow Wilson captured the US presidency in
1912, and the new Democratic administration assumed governance over
the Islands.
Conclusion
Throughout the controversies, Forbes seemed detached and unperturbed,
claiming that the Commission had “smiled indulgently” at the Assem-
bly’s “outburst of childishness”78 over appropriations and dismissed the
whole fracas as a “veritable tempest in a teapot.”79 His patronizing atti-
tude betrayed the American conviction that the Assembly’s machinations
ultimately posed little threat to their fundamental position of control over
colonial governance. Believing that it was imperative for America, as the
colonizing power vouching for the Islands before the civilized world, to
keep a tight grip on the pace and progress of the colonial tutelary pro-
gram, American colonial architects centralized authority over the colonial
bureaucracy in the Governor-General and checked the legislative branch
that housed Filipinos – objectives that were served by Spanish and British
North American colonial precedents into which American governing prin-
ciples were infused.
After the Assembly had rejected Legarda for the eighth time, Forbes
was still confident that the Commission could “force his election
through,” but held back because this “will make bad feeling.”80 The
Commission might have, for instance, hauled the Assembly before the
insular courts and secured a definitive interpretation of the appointment
provision. What appears to have inhibited American Commissioners from
pressing their prerogatives, whether in or out of courts, was not insuf-
ficient authority either under the organic act or their constitutional tra-
dition’s background rules, but their fear of damaging the “cordial rela-
tions” believed necessary to preserve the erratic Filipino consensus favor-
ing American rule that was, in turn, crucial to maintaining the colonial
project’s consistency with the American political tradition.
In the meantime, Filipino-American relations promised to become
more cordial as the Democratic Party assumed the reins of power. Since
the 1900 elections, Democrats had carried a campaign platform plank
favoring “an immediate declaration of the nation’s purpose to give to the
Filipinos: first, a stable form of government; second, independence; and
third, protection from outside interference as has been given for nearly a
century to the republics of Central and South America.”81 Consequently,
Filipinos expected from Democrats greater sympathy for their aspirations.
They would neither be mistaken nor disappointed. Known as the “era of
good feeling,” the Democratic administration of the Islands oversaw the
Insular Government’s rapid Filipinization. Chapter 7 tackles this trans-
formation, beginning with the replacement of American personnel with
Conclusion 159
Filipinos, the enactment by the US Congress of the Philippine Auton-

omy Act, which was the Islands’ third and final organic law, and the
near-complete capture by Nacionalistas of this machinery of government
with the cooperation of the congenial Governor-General Francis Burton
Harrison.
7
American Vessels, Filipino Spirit
Filipinizing the Government of the Philippine Islands
“The election of Woodrow Wilson as President of the United States,”

recalled Philippine Assembly Secretary Teodoro M. Kalaw, “gladdened
us all in Manila.”1 Since the 1900 elections, the Democratic Party’s cam-
paign platform had favored immediately declaring America’s intent to
give to Filipinos a stable government, independence, and protection from
outside interference similar to that given to Central and South American
republics.2 Notwithstanding his party’s platform, President Wilson him-
self had not articulated a clear and consistent Philippine policy, but opted
to maintain the status quo until his Princeton colleague Henry Jones Ford
had toured the Islands, gathered information, assessed the situation, and
proffered advice.
Ford’s report generally paid tribute to the Taft era’s state-building
accomplishments – accomplishments for which officials like outgoing
Governor-General W. Cameron Forbes were quick to take credit. By
Forbes’s reckoning, the “very workable and economical” Government
of the Philippine Islands had made great strides modernizing the Islands
after pacifying the rebellion: the native was healthier, better educated,
more productive; the coasts were well-buoyed, adequately lighted, safe
for navigation; the terrain was dotted with schoolhouses, public markets,
government buildings, crisscrossed with roads and bridges, linked by
railroads, telegraphs, and telephones. All this, Forbes was convinced,
was owed to the devoted corps of colonial civil servants, who “worked
to the limit of their capacity to work – and that was great.” Forbes
could not speak “in too high terms,” or less self-servingly, of his fellow
160
American Vessels, Filipino Spirit 161
missionaries of modernity, who, “in an alien country, strange climate,

with an ungrateful government at home giving them half-hearted support,
which later failed them altogether, devoted themselves consistently and
unselfishly to their hard and altruistic work for a people who at that time
had little appreciative sense of the full measure of their service.”3
At the same time, Ford reported that Filipinos resented being rele-
gated to a secondary role and robbed of due credit for their part in the
Insular Government’s successes. “Without belittling what America has
done for the Philippines,” Filipino intellectual Maximo M. Kalaw argued
that “there is no getting away from the fact that the progress towards
democracy in the Philippines has been due mainly to the materials that
America found there,” which “made America’s task a great deal easier.”4
Filipino civil servants also begrudged their American superiors for dis-
paraging their abilities and blocking their advancement into the insular
bureaucracy’s higher echelons.
But in December 1912, President Wilson signaled change when he
expressed to an audience in Staunton, Virginia, his hope that although
“The Philippines are at present our frontier,” the American people were
“presently to deprive ourselves of that frontier.” While Wilson’s words
“settled down like a wet, cold blanket”5 among Americans in the Islands,
Filipinos eagerly anticipated greater autonomy under the new Demo-
cratic dispensation. They would not be disappointed. For in early 1913,
Wilson appointed as the Islands’ new Governor-General New York Con-
gressman Francis Burton Harrison, who would prove sympathetic to
Filipino aspirations and receptive to Speaker Sergio Osmeña’s plan to
intensify Filipino training for independence by expanding their presence
in the Insular Government. In 1916, Congress passed a new organic
law, the Philippine Autonomy Act or Jones Law, which vested legisla-
tive power entirely in Filipino hands and, most significantly, promised
to grant independence once a “stable government” had been established.
With Harrison’s cooperation and their new powers under the Jones Law,
Osmeña and his allies succeeded in Filipinizing the composition, struc-
ture, and objectives of the Insular Government primarily by encroaching
on the executive branch that controlled the machinery of state. Relax-
ing interdepartmental strictures negated the separation of powers design
through which American constitutional rules realized a government lim-
ited and ruled by law; nonetheless, Filipino advocates like Kalaw por-
trayed Filipino innovations as conforming to developments in American
constitutional law and practice and demonstrating Filipino readiness for
independence.
162 American Vessels, Filipino Spirit
Filipinizing Insular Government

It was a “deliriously happy people”6 that welcomed Francis Burton Harri-
son as he alighted from his ship at the Port of Manila. His warm
reception seemed well-justified, for Harrison viewed power-sharing with
Filipinos quite differently from his predecessors-in-office. Taft-era offi-
cials attempted to disassociate the art of government from questions of
Filipino sovereignty and often wished that Filipino leaders would focus
on the “constructive” work of administering government and modern-
izing the Islands rather than on “politics.” But Filipinos were wary of
the ulterior motives behind good governance and development. Histo-
rian Peter Stanley found their suspicions warranted, given that promi-
nent Americans spoke openly about their hopes that once infrastructure,
education, and free trade had eliminated “discontent and unhappiness,”
then independence agitators would lose their following.7 Perhaps partly
to convince Americans that their independence aspirations were sincere,
Filipino leaders were reluctant to completely sign on to the development
program and persisted in “politics.”8 Under Harrison, however, the diver-
gence between running government and controlling it disappeared, as the
bureaucracy and its activities came under Filipino-held offices. Supportive
of Philippine independence, Harrison believed that affording Filipinos as
many opportunities to operate the insular machinery was the best way to
train them in self-government.
Filipinizing Personnel
Filipinization began by creating a Filipino majority in the Philippine
Commission and replacing American insular personnel with Filipinos.
Harrison also transferred supervision over local governments from the
Executive Bureau, which fell under the Governor-General’s office, to
the Department of Interior, which was headed by a Filipino, Secretary
Rafael Palma.9 In addition, Harrison shifted administration over the
non-Christian areas of the Mountain Province and the Department of
Mindanao and Sulu from the US military to the Insular Government.
Five years after taking office, Harrison reported to President Wilson that
Today and for some time past the government may be said to be a Filipino govern-
ment, with the exception of the positions of Governor-General, Vice-Governor,
and a majority of the Supreme Court, the bulk of Americans remaining in the ser-
vice otherwise being in the teaching profession, either in the public schools or in
the University, or in scientific and technical positions. The forty-five provinces
are almost entirely under Filipino Governors and provincial boards, and so
Filipinizing Insular Government 163
are the eight hundred municipalities, as they have been nearly from the beginning
of the establishment of municipal governments in the Islands under the American
system.10
Yet the liberality which endeared him to Filipinos seemed consistent both
with the passivity evidenced by his disengagement from congressional
debates as one of Manhattan’s US representatives and with a “streak
of dilettantism” to which historian Frank Golay attributes his failure
to “achieve the potential that had so impressed Washington” early in
his political career.11 A graduate of Yale University and New York Law
School, Harrison descended from distinguished families in the Old South.
The son of Jefferson Davis’s private secretary and a successful novelist
from Baltimore, Harrison mingled comfortably with Filipino elites and,
unlike Taft-era Governors-General, rarely ventured out of these rarefied
circles to tour the Islands.
Filipinizing Structure
Filipinizing the Insular Government went well beyond substituting
American personnel for Filipinos and had an institutional dimension. In
1916, Congress enacted the Islands’ third and final organic act. Named
for Virginia Democrat William A. Jones, its sponsor in the US House of
Representatives, the Jones Law received a great deal of input from Filipino
political leaders, especially Resident Commissioner Manuel L. Quezon.12
It had two significant features. First, its preamble officially and cate-
gorically declared that it was the “purpose of the people of the United
States to withdraw their sovereignty over the Philippine Islands and to
recognize their independence as soon as a stable government can be estab-
lished therein.” Second, it resolved to give Filipinos “as large a control
of their domestic affairs as can be given them without, in the meantime,
impairing the exercise” of US sovereignty to better prepare them “to
fully assume the responsibilities and enjoy all the privileges of complete
independence.”13
Realizing this promise of greater autonomy was a new central gov-
ernment design that gave Filipinos full legislative control. The Jones Law
reconstituted the all-Filipino Philippine Assembly as the House of Rep-
resentatives; abolished the American-dominated Philippine Commission,
which had functioned as both cabinet and upper legislative chamber; and
created an all-Filipino Philippine Senate as the new upper house.14 Struc-
tured along presidential lines, the Insular Government’s executive power
was now vested exclusively in the American Governor-General. While
the 1902 Philippine Organic Act had been vague about the Governor-
General’s powers and slightly more specific about limits on the Philip-
pine Assembly, the Jones Law clearly demarcated the functions of the
two political departments. Thus, the Governor-General explicitly enjoyed
“supreme executive power”; general administrative supervision and con-
trol; the power of appointments, subject to Senate confirmation; and
commander-in-chief powers, including the sole authority to suspend the
privilege of the writ of habeas corpus.15 The Jones Law also preserved
the Philippine Organic Act’s “automatic appropriations” fail-safe. This
reenacted the previous year’s appropriations if the Legislature failed to
pass a new bill and thus precluded the Filipino Legislature from starv-
ing the government of funds. In addition, it compensated for the loss of
American control over legislation by granting line item veto power to the
Governor-General16 and the power to annul Philippine laws to Congress
and the US president17 and by requiring presidential approval for certain
bills.18
Restructuring the Insular Government transformed not only executive-
legislative/Filipino-American relations, but also the Philippine politi-
cal dynamic. With two Filipino-controlled government bodies, Speaker
Osmeña was no longer the presumptive Filipino leader. This precipitated
a crisis in Filipino leadership, for Manuel L. Quezon challenged Osmeña’s
preeminence. Like the Speaker, Quezon had been a fiscal, governor, and
Assemblyman until his appointment as Resident Commissioner to Wash-
ington, DC. Spending the remainder of the Taft era representing the
Philippine colony before the home government, he returned to the Islands
to run for the new Philippine Senate and became its president. His Wash-
ington, DC, stint provided an invaluable education in American politics:
Quezon acquired a facility in English that eluded his rival, figured out
the intricate relationships within the federal government and between the
federal government and the Insular Government, and made important
contacts in the executive branch and in Congress. He worked closely
with Colonel Frank McIntyre, Bureau of Insular Affairs chief, in draft-
ing proposals that shaped the Jones Law and befriended Congressman
Francis Burton Harrison, whom he endorsed for Governor-General and
accompanied on the ocean voyage to the Islands. Cultivating the impres-
sion that he was instrumental in helping to secure both the passage of
the Jones Law and the appointment of the Islands’ most congenial Amer-
ican Governor-General, Quezon returned from Washington a hero to the
Filipino people.19 With his hegemony vulnerable, Speaker Osmeña con-
tinued in the meantime to carry out his strategy of Filipinizing the Insular
Government through constitutional means.
The Philippine Legislature’s Quasi-Parliamentary Strategy 165
The Philippine Legislature’s Quasi-Parliamentary Strategy

Under Osmeña’s direction, the Philippine Legislature so radically altered
the Insular Government’s structure and internal processes that political
scientist and strategist Maximo M. Kalaw likened it to English parliamen-
tary government. Like the English King, the American Governor-General
performed mostly ceremonial functions, while the Legislature burrowed
into the Insular Government bureaucracy to operate it. Specifically, they
reorganized the bureaucracy to shift control from the Governor-General
to Filipino Department Secretaries, who were made accountable to the
Legislature. Most notably, the Legislature invaded the executive depart-
ment by creating hybrid executive-legislative administrative bodies, sig-
nificantly, the Council of State and the Board of Control, which played
“the active part, the one which really rules, which advises the ceremonial
part in practically all the governmental work that it does.”20
While no parallels were drawn at the time, the reconfigured Insular
Government also resembled a homegrown prototype, the aborted Malo-
los Government. Informed by nineteenth-century Spanish constitutional
developments resulting in functionally distributed government authority,
the 1899 Malolos Constitution constructed a government with execu-
tive, legislative, and judicial branches, but shifted to its legislature the
control traditionally vested in the Spanish Governor-General. Devised by
ilustrados to curb the Revolutionary Army’s influence over the Philippine
Republic, these schemes strengthened the legislature that they expected
to dominate and prefigured those later revived by Filipino lawmakers to
control the American Governor-General.
Keen to check the military’s growing power, Felipe Calderon and
Apolinario Mabini, the Malolos Constitution’s ilustrado architects, pro-
posed two different strategies. Calderon, on the one hand, preferred to
neutralize the military oligarchy “by the oligarchy of intelligence.” Antici-
pating that “congress would be composed of the most intelligent elements
of the nation”21 – namely, ilustrados like himself – Calderon opted for
legislative supremacy and incorporated strong parliamentary features into
his design. He vested in a unicameral Assembly of the Representatives of
the Nation, or National Assembly, the right to elect and impeach the pres-
ident, to direct cabinet members, and to appoint the Supreme Court Chief
Justice and the Procurador General.22 On the other hand, Mabini, who
possessed an ilustrado’s education but no wealth or family connections,
believed that legislative supremacy was detrimental to the war effort.
As a temporary expedient, he constituted the president as a politico-
military dictator and limited the Revolutionary Assembly to advising
and securing greater popular support for General Emilio Aguinaldo and
the Revolution.23 Calderon’s draft prevailed, and although stillborn, the
Philippine Republic’s parliamentary proclivities seem to have resurfaced
in the altered Insular Government.
Channeling Control to the Department Secretaries

The Malolos Constitution extended the legislature’s control over the
executive by diverting authority over the central bureaucracy from the
president to the department secretaries. In turn, the cabinet answered
to the Assembly,24 which was the only directly elected branch of the
aborted Philippine Republic. Similarly, the Philippine Legislature during
the Harrison years invoked Sec. 22 of the Jones Law to reorganize the
executive departments and institute procedures rerouting the actual con-
duct of government business to the Department Secretaries, thus reducing
the Governor-General to a mere figurehead.
Under Harrison, Filipino legislators convened an Efficiency Board to
accomplish what Senator Rafael Palma, Speaker Osmeña’s close friend
and ally, called a “logical and scientific arrangement of the bureaus.”
The Board pronounced the design of Taft-era departments “theoretically
defective” for combining contrary, even antagonistic, functions. Palma
claimed, “No country in the civilized world has organized a department
of commerce and police,” since “commerce is essentially pacific, while
the police is essentially warlike.” Neither was it “good logic” to combine
finance with justice, because they “do not imply homogenous ideas nor
do they include identical functions,” but rather, “in the majority of cases
lawyers are the poorest financiers of the world.”25
Adopting the Efficiency Board’s recommendations, the Reorganization
Act26 abolished the four departments created by the Philippine Com-
mission and distributed their duties among six new departments corre-
sponding to “the six principal purposes which a fairly well organized
government has to accomplish.”27 Thus, in place of the old Departments
of the Interior, Commerce and Police, Finance and Justice, and Public
Instruction, the Legislature established the Departments of the Interior,
Public Instruction, Finance, Justice, Agriculture and Natural Resources,
and Commerce and Communications. These changes shrank the scope of
activities that were overseen by Americans and entrusted them to Filipino
Department Secretaries. By transferring to the Department of Interior
jurisdiction over the colonial police force, for example, the Reorganiza-
tion Act made a Filipino official responsible for a segment of the Insu-
lar armed forces and enabled Filipinos to partake in what had been an
American monopoly over the control of violence. When the dust had
settled, only the Department of Public Instruction remained in American
hands, since it was the only department that the Jones Law created and
specifically assigned to an American.
To control government administration, the Malolos Constitution
barred its president from directly exercising executive power, but allowed
him to act through seven cabinet secretaries, who sat with him in a consti-
tutional body called the Council of Government.28 Similarly, the Philip-
pine Legislature under Harrison enacted Act No. 2803 to give cabinet
secretaries chief responsibility for setting their departments’ direction and
policy and to reduce the Governor-General’s power of supervision and
control over these bodies to general policy matters.29 Finally, the Malo-
los president was required to secure the relevant secretary’s signature to
implement official acts to discharge his constitutional and legal duties,
absent which public functionaries were not bound to follow his orders.30
Likewise, the Philippine Legislature allowed the Governor-General to
issue executive orders, regulations, decrees, and proclamations affecting
departments only “upon proposition and recommendation by the respec-
tive Department.”31
Having enlarged the role of department secretaries, the Malolos
drafters made them answer to the National Assembly. The Harrison-
era Legislature achieved this same measure of control through Jones Law
devices, such as the Philippine Senate’s right to confirm appointments.
Palma also proposed requiring cabinet members “to appear in either
House whenever called to do so, not only for the purpose of reporting
upon their official acts and measures, but also to collaborate in the policy
and in the preparation of the acts passed by the Legislature.”32 Emanat-
ing from the legislature’s right to interpellate cabinet members, this duty
to appear may seem inconsequential, but Palma contended
. . . in reality it signifies a great deal. The department heads will not only have to
give the information required of them, but being often subjected to minute inter-
rogation they will have to explain and defend their official acts. If the Houses can
demand of them that they give an account of their official acts, they are respon-
sible to the Houses, though ultimately responsible to the Governor-General. We
cannot claim more under the provisions of the Jones bill.33
Although it breached executive-legislative barriers, delegating the

Governor-General’s administrative authority conformed to the civil ser-
vice rubric that increasingly assigned the details of administration to
specialized agencies with experience and expertise. But while intended
to professionalize and insulate government work from politics, these

arrangements were suffused with politics and had profound political
implications most evident in the case of local governments. Municipal
and provincial government officials habitually petitioned the government
for relief from the payment of taxes and tax penalties. To induce the
Assembly to pass Commission bills, the Philippine Commission under
Governor-General Forbes had “extended the payment of the land tax –
a very pernicious thing to do but very popular with the Assembly.”34
Shifting local government authority from the American-controlled Exec-
utive Bureau to the Filipino-run Department of Interior and preventing the
Governor-General from supervising the details of administration empow-
ered a Filipino official to decide on these applications. That Department
Secretaries were usually Nacionalistas appointed upon Speaker Osmeña’s
recommendation gave the Interior Secretary great incentive to grant tax
relief applications to help keep his party in power.
Indeed, Nacionalista members staffed the Filipinized insular bureau-
cracy. Primed in Tammany Hall politics while a US congressman from
New York, Governor-General Harrison facilitated the consolidation of
Nacionalista dominance over Philippine colonial politics through his pol-
icy of consulting with Nacionalista leaders, especially Speaker Osmeña,
in matters of policy and personnel “to the exclusion of the opposition,”
namely, the Progresista and Democrata parties. Thus, Harrison gave the
Nacionalistas a virtual lock on appointments to both top cabinet posts
and positions throughout the insular bureaucracy, encompassing central
and local government units as well as government businesses. As Resi-
dent Commissioner, Quezon justified the Nacionalistas’ claim to being
the Filipino people’s sole spokespersons with their electoral victory over
the other parties: “When [Democrata] Juan Sumulong becomes Speaker
of the Assembly . . . I shall be the first in demanding that they be consulted
in all things that are done in the Philippines.”35 Throughout the Taft era,
Speaker Osmeña sought for his majority party the exclusive right to speak
for the Filipino people, but with limited success. With Harrison’s help,
Nacionalistas finally institutionalized and cemented their status as the
Filipino people’s sole spokesmen.
Invading the Cabinet

Beyond controlling the Department Secretaries, Nacionalista legislators
ended up joining the cabinet themselves primarily through hybrid com-
missions that performed both executive and legislative duties. Nothing in
the Jones Law prevented legislators from being appointed to the cabinet,
save for the provision prohibiting legislators from occupying positions

created by them. But apart from allowing Filipino legislators to partic-
ipate in conducting executive affairs, the presence of Filipino legislators
in the cabinet served an important political function – that of unifying
Filipino political leadership. Indeed, this purpose initially justified the
creation of these mixed mechanisms.
Under the Reorganization Act, only one cabinet position was available
to a legislator – the Secretary of Interior. This post was first offered to
Osmeña in order to institutionalize his role as the top Filipino leader, but
the Speaker declined it. Partly to debunk American perceptions forged at
the inception of colonial rule that there were no Filipino people, it became
imperative for native leaders in the colonial government to claim to rep-
resent one Filipino people. With the Assembly being the only Filipino-
controlled Insular Government body under the Organic Act, identifying
the top Filipino representative was simple and straightforward: whoever
was Speaker automatically became the preeminent Filipino in govern-
ment and in colonial politics. But by creating the Senate, the Jones Law
instituted two Filipino-controlled bodies and obscured who between the
Speaker or the Senate President would be the top Filipino. Quezon had
urged Osmeña to run for the Senate, but the latter opted to stay in
the Assembly while remaining chief of the Nacionalista Party. Thus,
Osmeña’s political supremacy after the Jones Law derived more from
his leadership of the Nacionalista Party – an unofficial preeminence that
became increasingly insecure, as the inevitable rivalry between the Senate
and House – and between Quezon and Osmeña – escalated.
In his inaugural address as Senate President, Quezon began to assert his
institution’s superiority. “Wherever the bicameral system exists,” Que-
zon claimed, “the lower house is supposed to serve as a very sensitive
thermometer, registering the most momentary and temporary changes in
public sentiment.” The Senate, however, represented “the serene, mature,
and prudent judgment of public opinion” and “must be a safe, immovable
dam to contain any overflow of popular passion.”36 With senators soon
chafing under Osmeña’s leadership, Kalaw recounts that “the jealousy
between the two bodies prompted the idea of placing party leadership out-
side the legislative chambers” and “a caucus of majority members of both
Houses” passed a resolution “urging Osmeña to leave the speakership and
accept the secretaryship of the interior.”37 Osmeña was interested, but
wanted Quezon to join him in the cabinet. When Quezon refused to coop-
erate, Osmeña declined the appointment.38 Perhaps Osmeña felt that by
giving up the Speakership, he risked losing his electoral mandate, which
would render his leadership of the Nacionalistas even more insecure.

Thus, Harrison appointed Senator Rafael Palma, Osmeña’s strongest sup-
porter, as Interior Secretary. Because the leadership dilemma persisted,
Osmeña persuaded Harrison to form the Council of State whose members
were the Governor-General, the Department Secretaries, the Speaker, and
the Senate President. Heading this “super-cabinet” were a president, who
was the Governor-General, and a vice-president, who, it was assumed,
would be a Filipino and would “in the very nature of things [become]
the highest Filipino official in the government.”39 Harrison recalled that
it was upon Quezon’s motion that Osmeña was chosen vice-president of
the Council and thereby “became once more officially recognized as the
‘second man’ in government circles”40 – for the moment.
Unifying and conferring institutional sanction on the Filipino politi-
cal leadership, the Council of State also became the main node through
which legislators inserted themselves into the executive department’s
everyday affairs. But it was not the only vehicle. At Osmeña’s behest,
Harrison formed other mixed extra-constitutional bodies for more spe-
cialized purposes. Said to be inspired by examples in Canada, Australia,
Newfoundland, and Japan,41 the Council of State and similar boards
also resembled the defunct Malolos Government’s Permanent Commis-
sion, by which National Assembly Members checked the president, and
the Council of Government, through which Department Secretaries fil-
tered the president’s influence on the administration. Through such hybrid
executive-legislative bodies, legislative leaders managed different aspects
of the Insular Government’s day-to-day business. Sitting on the Public
Works Committee, for example, enabled them to divide public works
allotments.42 Through the Emergency Board, they reallocated the unex-
pended balances of appropriations among bureaus and agencies of the
government.43 As Board of Control members, they formed part of a
“super board of directors” that voted government-owned shares in pub-
lic corporations, determined corporate policy, and virtually ran these
government enterprises.
Constitutionalizing Malolos
That Kalaw invoked Anglo-Saxon precedents to justify the altered Insu-
lar Government is interesting, given its resemblance to more proximate
Filipino models and Kalaw’s expertise in the Philippine Revolution, the
Malolos Constitution, and the short-lived Philippine Republic. Hailing
from a family of Tagalog intellectuals, Maximo M. Kalaw was the
Constitutionalizing Malolos 171
younger brother of Assembly Secretary Teodoro M. Kalaw, who had

assisted Speaker Osmeña in the lower house’s contests against Governor-
General Forbes and the erstwhile Philippine Commission. But the younger
Kalaw was accomplished in his own right, having served as Resident
Commissioner Quezon’s private secretary while simultaneously pursuing
a law degree from Georgetown University. A nationalist historian,
Kalaw’s accounts of American colonial state-building offered a Filipino
corrective to the more celebratory imperial histories written by American
colonial officials. Heading the University of the Philippines’s College of
Liberal Arts and Political Science Department, Kalaw published widely in
treatises, academic journals, the Filipino and American press, and helped
prepare materials that Filipino representatives submitted to Congress.44
When the Philippine Legislature created the Commission on Indepen-
dence in 1918, Kalaw emerged as the leading Filipino political theorist
responsible for devising strategy.
Justifying Filipino parliamentary innovations in terms of American,
rather than Filipino, precedents fed into Kalaw’s larger project of demon-
strating that Filipinos had met the Jones Law’s criteria for “stable gov-
ernment” and were ready for independence. To determine what “stable
government” meant under the Jones Law, Kalaw reviewed the term’s
previous usage in US foreign policy and suggested in a memorandum to
Senate President Quezon and Speaker Osmeña that it ought to be the same
as that applied by War Secretary Elihu Root to effect US withdrawal from
Cuba in 1902. Holding Americans to their own practice, Kalaw argued
that because the Insular Government, like the Cuban occupation govern-
ment, was “based upon the peaceful suffrage of the people” and “subject
to the limitation and safeguards which the experience of constitutional
governments has shown to be necessary to the preservation of individual
rights,”45 then the Philippine Islands deserved independence under the
Jones Law’s terms. But while based on Filipino suffrage, the Filipinized
Insular Government’s commingling of executive and legislative functions
and officers violated the constitutional principle of separation of powers
and the mode by which the Jones Law implemented this fundamental
element of the American rule of law ideal in the Islands.
Harrison and his Nacionalista collaborators alike were aware that their
institutional inventions were almost certainly unconstitutional under a
strict and literal reading of organic law texts, only tenuously warranted
by even the most liberal construction of these congressional acts, and thus
precarious. But while Governor-General Harrison “frequently offered”
to sign a bill giving statutory existence to the Council of State that he had
created via executive order, Speaker Osmeña “always hesitated,” perhaps

tacitly acknowledging the futility of providing statutory basis for a body
that lacked constitutional sanction in the first place.46
Indeed, official opinions such as those expressed by the Schurman
Commission had already dismissed the Filipino constitutional program as
a “system of general distrust, of divided power, of indirect responsibility”
that contravened “so many of the vital principles laid down by Hamil-
ton and Madison in the Federalist.” Quite accurately, they grasped the
Malolos charter’s attempt to offset the Revolutionary Army’s dominance
over the fledgling and fragile Philippine political order as modeled after
the Spanish example, “with which alone the Filipinos were familiar,” for
circumventing “knavish and oppressive rulers whom a long experience
had accustomed them to regard as an inevitable part of government.”47
As the political scientist Cesar Adib Majul surmises, the notion of checks
and balances “was not at all important” to the drafters for whom it was
a formalist exercise that “amounted to nothing more than seeing to it on
the part of the legislative that both the executive and the judiciary did
not exceed the functions assigned to them.”48 Given the Malolos Govern-
ment’s design, the Schurman Commission determined that Filipinos “had
not risen to the great and fruitful conception of the complete separation
and mutual independence of the executive, the judicial, and the legisla-
tive departments of the government” and that it would “take time and
require visible demonstration to convince the inexperienced Filipinos of
the superiority of the American method of a strong executive who shall
be completely independent of the legislature.”49
Because the test of Filipino capacity for self-rule was their ability to
adhere to the American program, then justifying their innovations in
terms of an anomalous model would have undermined Kalaw’s case by
demonstrating not only the Filipinos’ utter failure to learn, but also their
incorrigible defiance for having altered the format of the test. Thus, when
the Malolos charter’s parliamentary tactics inhabited the legislative insti-
tutions to which the Filipino people’s elected representatives were con-
signed, they found expression through options available to this body,
as Filipino legislative leaders strove to carve out a meaningful place for
themselves under the new constitutional order ordained by the Jones
Law and used its language to portray their devices as compatible with the
American constitutional tradition. In so doing, Filipino spokesmen hoped
to demonstrate to the American public, notably Congress, that their con-
duct of colonial government had reached the Jones Law’s benchmarks
for “stable government” and entitled them to independence, whether the

objective was merely to expand Filipino autonomy or truly to sever ties
with the United States.
Direct Representation and Progressive Efficiency

Short of asserting validity, Kalaw attempted to justify extensive legislative
presence in executive affairs by enlisting the theory of direct representa-
tion that the Philippine Assembly had propounded during the Taft era.
This time, it supported the notion of the Council as “a popular institution
for its membership depends upon the people expressing their will thru the
regular elections.”50 With legislators being the only directly elected Insu-
lar Government officials, their participation in these composite bodies
made American colonial government, especially the executive, account-
able to “the people” and facilitated the expression of popular consent
that morally validated American democratic colonialism.
But Kalaw did more than rehash old arguments. Finding objections
against the Council of State based on the “opposition to a concentra-
tion of powers and a justifiable and proper jealousy on the part of the
Legislature of the influence of the executive,”51 Kalaw rejected literally
interpreting “the ever mooted question of separation of powers”52 and
argued for a pragmatic understanding and application of the principle.
Acknowledging separation of powers as a “fundamental principle enun-
ciated by the early American statesmen” for whom “the greatest safe-
guard to liberty was the complete independence of these two governmen-
tal powers,” Kalaw nonetheless noted that this theory “has never been
actually carried out in practice.” Indeed, no government, not even the
United States,53 “adheres to the strict and literal exercise of the separa-
tion of powers and the independence of powers;”54 for “it is impossible
to have a government in which these two departments are totally sepa-
rate and independent”55 and that “[a]ctual political necessity . . . requires
that there shall be harmony between the expression and execution of the
state will.”56 Speaker Osmeña proffered the Council as a forum providing
the Governor-General “ready contact with the leaders of the Legislature;
while the Legislature, through its presiding officers, would be in touch
with the Executive Department.”57 Harrison’s experience was that “the
new body drew the executive still closer to the Legislature and virtu-
ally insured the support of any reasonable executive policy among the
legislators,” and thereby “greatly enhanced the power of the machin-
ery of government.”58 Finally, Kalaw traced the Council’s origins to the
Philippine Commission, downplaying its novelty by characterizing it as “a

recognition of established facts and conditions”59 – that is, of the actual
relations of cooperation and consultation that already existed between
the Governor-General and Filipino legislative leaders.
Certainly, arguments in favor of the Council of State’s practicality and
efficacy seem warranted. While the Council was intended “to aid and
advise the Governor-General on matters of public importance,” Harri-
son himself observed, “its decisions gradually acquired an aspect more
and more definitive,”60 because it was through this “super-cabinet” that
the real governing was carried out. More than an advisory body, the
Council was viewed by Filipino leaders as a “device for expanding self-
government.” Osmeña biographer Vicente Albano Pacis explains that
“however exalted its membership,” the Council could not have func-
tioned “unless it was enabled to perform executive functions.” Conse-
quently, the Insular Legislature enacted some 60-plus laws that “vested
their implementation in the Council,”61 channeling to it the power to pre-
pare the budget,62 suspend public works construction,63 prohibit rice and
palay exports,64 approve contracts for the services of American teachers65
and technical personnel.66
Assigning budget formulation to the Council of State dissolved the
Taft-era appropriations deadlocks and concentrated power over gov-
ernment financing in Filipino-controlled offices. Financing the bureaus
during the Taft era was somewhat decentralized. Bureau chiefs sent to
the Executive Secretary statements summarizing their receipts and expen-
ditures for the year along with estimates based on the previous year’s
operations. The Executive Secretary then compiled and transmitted these
estimates to the legislature without revision. Bureaus were even allowed
to “utilize their receipts to defray their own expenses,” thus requiring
appropriations “only for the difference between the estimated receipts
and the estimated expenses.” Forbes recalled that the Assembly “very
properly desired to limit these receipts that could be so used,” to which the
Commission agreed.67 Harrison later delegated budget preparation ini-
tially to the cabinet and then to the Council of State, while the legislature
renounced “its ancient prerogative of framing the financial program of
the government.” Under the new procedure, the Council of State outlined
general policy and requested bureau chiefs to send estimates conforming
to these directives to their respective Department Secretaries, who had
discretion to cut or add items. Coordinating the Department Secretaries
was the Secretary of Finance, who submitted the budget to the Council
of State for final approval. The Governor-General then sent the approved
budget to the legislature in the form of a message.68 Justified once again
as scientific and efficient, the new budget system gave Filipino leaders in
the legislature and executive total control over government financing.
The “Spirit of the Jones Law”

Most frequently cited to justify this mode of Filipinization was the “spirit
of the Jones Law,” which warranted a liberal construction of organic
act provisions and greater Filipino autonomy. Harrison frankly acknowl-
edged that “[t]here is little doubt that what the Filipinos desired was
a responsible ministry and a form of government like that of Canada,
where the Governor-General was a mere figurehead” and that “the Jones
Act did not permit this.” He even acknowledged that the Jones Law
had given the Governor-General “executive power and control over all
departments of the administration . . . for the first time, the veto power
over all acts of the Legislature, and . . . the power to nominate the heads
of executive department.” Still, Harrison believed that “the spirit of the
Jones Law was without question that of self-government for the Filipino
people,” and thus felt that “it was incumbent upon the Governor-General
to carry out the terms of the act with as much consideration as possible
for that principle.”69 In addition, Kalaw argued that the Jones Law’s
underlying purpose of granting broader self-rule to the Filipinos, taken
together with its ultimate promise of independence, entailed reading it
more generously.70 Indeed, equating the Jones Law with a solemn com-
pact, Filipino leaders asked how its promise would be fulfilled if they
were not afforded every possible opportunity to learn self-government
and the largest measure of autonomy compatible with the exercise of
American sovereignty. With Harrison’s blessing, Filipinos in the Insular
Government maximized their options.
Combining their dominance over the legislative process, their Council
of State membership, and their party ties to cabinet members, Osmeña
and the Nacionalistas dislodged the Governor-General as head of colo-
nial administration and channeled to them his authority over all levels
and all operations of the Insular Government. Aided by legal and political
developments that entrusted government tasks to administrative exper-
tise, Nacionalista legislators devised procedures to bypass the Governor-
General and redirect the daily conduct of Insular Government business
to Department Secretaries from their party. Cabinet members habitually
sent proposed legislation to the offices of the Speaker or Senate President
before even showing these to the Governor-General, who was, after all,
their direct boss.
Strikingly, Osmeña during the Harrison years and Quezon during the
succeeding Wood administration ran parallel cabinets that met separately
from the Governor-General in order to strategize and determine policies,
priorities, projects, and budgets,71 but kept the Governor-General in line
through their presence in the Council of State and similar joint commit-
tees. Cutting off the Governor-General from the rest of the bureaucracy,
they insulated him at the top, leaving him to deal only with the Depart-
ment Secretaries, who, in turn, answered to their leaders in the Insular
Legislature as well as in the Nacionalista Party. Using Administrative
Law to fill up the nitty-gritty details of everyday government work that
the Jones Law did not, and could not, provide for, Nacionalistas escaped
their legislative role and parlayed their hegemony over colonial politics to
supplant the Governor-General and take over the entire colonial govern-
ment. Confronting such arrangements upon assuming office, Harrison’s
Republican successor Leonard Wood complained that these wove an
“entangling net” around the Governor-General.72
Conclusion
Although significant, the Filipino takeover of the Insular Government
was not an end itself, for the real prize was this machinery’s capacity to
reshape Philippine life. “Filipinizing” the Insular Government’s personnel
and structure enabled Filipino leaders at the helm of both the legislative
and executive branches to refashion colonial development policy toward
Filipino priorities and define which “public” the government would serve,
giving it a distinctly Filipino identity. In the process, they displaced the
Taft-era practice of defining the Filipino public interest using progressive
standards like expertise and efficiency.
In this chapter, Filipino legislative leaders justified their institutional
incursions into the executive branch as compatible with the separation
of powers principle that fragmented American government power and
subjected it to the rule of law. The next chapter explains how govern-
ment interventions in the name of the Filipino public were harmonized
with the Bill of Rights that sought to legally curb the majoritarian ten-
dency to operate government for its own benefit, often at the minority’s
expense. Just as Governor-General Harrison facilitated Filipinizing the
Conclusion 177
political realm, the Insular Supreme Court, through Associate Justice

George A. Malcolm, legitimized the Filipinization of the Insular Govern-
ment and its projects within the American constitutional tradition that
these tutors in self-government believed best expressed their rule of law
ideal.
8
Filipinizing the Public
The Business of Government and the

Government in Business
Filipino dissatisfaction with American colonial rule had both institutional

and policy dimensions. Filipino public health officials, medical historian
Warwick Anderson recounts, questioned the necessity and appropri-
ateness of American hygienic practices for native health. Specifically,
Filipinos disapproved of the Bureau of Public Health’s heavy investment
in controlling and curing leprosy rather than tuberculosis, which was
a more widespread problem, and perceived the imposition of American
standards as intended primarily to make the Islands and its natives clean
and safe for Americans. More broadly, these types of policies also called
into question the altruism of American colonialism’s civilizing agenda –
that is, whether it truly benefited Filipinos.1
Although colonial careerists professed that altruism differentiated
American colonialism from the European, American development work
was in truth neither one-sided nor completely disinterested. As previously
discussed, the Philippine colony functioned as a laboratory for policy and
institutional innovations later adopted in the US mainland. Personal gains
were to be had as well: just as overseas conquest brought glory to the
conquistador, a stint in the Philippine service provided a test of indi-
vidual ability that was potentially a springboard to career advancement
at home, whether in government, the academe, or the private sector.2
Yet despite their reservations, Filipinos still preferred the Insular Govern-
ment’s public projects, whose fruits they expected to inherit upon inde-
pendence, over Taft-era economic development policies, which threatened
to entrench American interests in an economy historically dominated by
foreigners.
178
Filipinizing Developmental Colonialism 179
Having captured the Government of the Philippine Islands, Filipino

legislative leaders no longer expressed public interest justifications for
government programs in the Taft era’s abstract progressive vocabulary,
but identified them with the Filipino majority’s interests. This translated
to Filipino control of the insular economy, particularly sugar, its most
profitable industry, and involved both positive and negative strategies.
More positively, the government created financial incentives for Filipino
enterprises and even engaged in business directly through government-
owned corporations. Negatively, the government erected entry barriers
that discriminated against foreigners. Wielding government power to vin-
dicate majority interests contravened the philosophy of the transplanted
liberal constitutional model, but was nonetheless constitutionalized by
the Philippine Supreme Court, which began to incorporate doctrines re-
presentative of the progressive assault against the dominant classical legal
tradition.
Filipinizing Developmental Colonialism

Filipinizing the Insular Government’s personnel and structure under
Governor-General Francis Burton Harrison redirected developmental
colonialism’s undertakings toward Filipino priorities. Filipino doctors
running the Bureau of Public Health, for example, formulated less dra-
conian surveillance and enforcement standards and shifted the basis of
hygiene reform from race to social class – no longer targeting Filipinos
in general but more specifically the masses. American colonial officials
regarded such changes as deleterious. Upset at losing their positions and
seeing their hard work undone, former Health Director Victor Heiser
echoed sentiments of fellow Americans severed from the insular service
when he complained that Filipinization now meant that “politics seems
to dominate everything for the worst” and that Filipino “imitators” with
skills more apparent than real ran a “big and ponderous” administrative
machine with great inefficiency.3
More significantly, Filipino legislators led by Speaker Sergio Osmeña
reoriented colonial economic policy. While continuing to promote eco-
nomic development through private investment, programs now assumed
a more public and Filipino character. That is, they involved greater use
of the Insular Government’s revenues and resources and were designed
to help Filipinos compete with and eventually supplant foreigners who
dominated the Philippine economy.
180 Filipinizing the Public
Developmental Nationalism
Speaker Osmeña considered it “a basic obligation of Filipino political
leadership to launch the Government in business and, in the process, also
educate and encourage Filipinos to take an increasingly active part in the
economic life of the country.”4 Therefore, the strategy of government
in business extended to the economic sphere the political strategy of
Filipinization that had remade the Insular Government and earned for
him the title of “The Father of Economic Nationalism.”5
Why economic nationalism was equated with getting the Insular Gov-
ernment in business is best understood when viewed as a strategy for
enabling Filipinos to challenge long-standing foreign control over the
Philippine economy, especially the sugar industry. Tracing Philippine
sugar’s impact on the Philippine political economy, historian John Larkin
notes that commercial production of the Islands’ most profitable cash crop
took off thanks to foreign capital infusion and, most important, foreign
innovation. Under Spain, foreign stimulus was provided, not by Spaniards
content to wait for the galleons and to draw colonial government salaries,
but by British and American trading firms, who bought sugar and
extended credit to natives to finance cultivation. Commercial cultivation
in Negros Island was originated by Yves Gaston, a Frenchman who came
to the Philippines by way of Mauritius to make sugar for the Spaniard
Domingo Roxas and subsequently went into business for himself.6
Foreigners also introduced the modern machinery that improved
Philippine sugar’s quality. Cruder native refining methods produced low
grades of sugar called pilon and muscovado. Although praised in the
mid-nineteenth century, muscovado sugar drew criticism by the 1870s
when British and North American markets demanded sugar of higher
purity that was unavailable in the Islands. To promote exports and take
full advantage of US tariff preferences, erecting centrifugal mills, or “cen-
trals,” as sugar producers had done in Java, Hawaii, and Cuba, became
imperative in the Islands. Because new technology was costly, foreigners
initially imported cheaper modern equipment, but eventually constructed
centrals. Filipino sugar producers feared making the sizable investments
on their own, but could not source adequate capital from local banks,
thus requiring “government intervention to assure that Philippine inter-
ests could afford to build centrals.”7
Government participation in the economy also meant continuing
Taft-era officials’ practice of mixing government work with private busi-
ness. If Insular Government projects could personally benefit American
officials, then so, too, should they directly benefit Filipinos who were
its true beneficiaries. Moreover, government ownership ensured greater

control and transparency than otherwise possible from merely regulating
purely private corporate activity.
Speaker Osmeña’s nationalistic economic development program found
a willing ally and supporter in Governor-General Harrison. Unlike pre-
vious Governors-General, Harrison was wary of foreign investment gen-
erally and American investment particularly, because “[r]ecent American
history had convinced him that concentrations of economic power in
the hands of private interests were likely to be both abusive and cor-
rupt, quite apart from their influence upon the prospects for Philippine
independence.”8 Although different motivations, Governor-General Har-
rison’s fear of big business, on the one hand, and Filipino suspicion of
private foreign control of the Islands’ external and internal economy, on
the other, were compatible and equally served by the policy preferring
public/Filipino-led economic development.
The Filipino (Government) in Business

Economic development policies under Harrison had many components
of which a mainstay was the Insular Government’s continued effort to
seek favorable US treatment for Philippine goods. The Insular Gov-
ernment also intervened with the Hemp Price Fixing Committee of
the War Industries Board in Washington, DC, in order to relax price
controls in the Islands during World War I, because Philippine hemp
companies owned by Filipinos and Americans could not make enough
profit.9
Domestically, the Insular Government tried to maximize the benefits
of US trade preferences for Filipino business by stimulating and harness-
ing local capital. It refused, however, to continue the Taft-era strategy
of enticing private foreign capital investment. Instead, Filipino legislators
used the Bureau of Commerce and Industry to explore potential markets
in the United States for Philippine products. In 1918, Commerce and
Communications Secretary Dionisio Jakosalem dispatched bureau direc-
tor James Rafferty, the Taft-era Commissioner of Internal Revenue, on
a mission to open Philippine commercial agencies in the United States.
These agencies were supposed to report on US market conditions to
Manila; provide American businessmen, tourists, and investors with reli-
able information about the Philippines; and assist Philippine businessmen
in forming trade connections in the United States.10 Interestingly, Rafferty
followed the Taft-era script and used the opportunity to try to attract
American investors. His deviation precipitated a stinging rebuke from
Speaker Osmeña and Secretary Jakosalem. Osmeña cabled Quezon in

New York to tell Rafferty “that instead of his endeavoring to secure
investment in the Islands of American capital, now available here besides
that of the Filipinos, he should confine himself to his mission; it being
unnecessary to remind him that the very law creating the Bureau of Com-
merce admitted then the fact that there is considerable local dormant
capital and one of its main objects is to awaken it rather than bring in
outside capital.”11
Indeed, the Insular Legislature attempted to rouse dormant local cap-
ital by enacting the Infant Industry Act in 1915.12 Designed to “promote
and encourage the agricultural, commercial, and industrial interests of the
Philippine Islands,” this law authorized the Governor-General to guaran-
tee for a five-year period a return on capital invested in new enterprises at
least 60 percent of which was Filipino-owned. But the guaranteed rate of
return proved unrealistic, given “alternative investments available in the
Philippine economy, which was notably short of capital.”13 Additionally,
the Insular Legislature promoted the growth of Philippine enterprises with
the help of bodies like the Government Sugar Central Board, the Coconut
Products Board, and the New Industries Board. Significantly, the Sugar
Central Board allocated currency reserves to finance construction of
modern centrifugal mills necessary for improving the quality of Philippine
sugar, so it could find markets outside the Islands and the China coast and
maximize US tariff preferences. The Sugar Central Board negotiated an
agreement with an English company for machinery for one new central,
but the deal fell through when the English company could not guarantee
delivery during World War I.14
Failure to stimulate private Filipino investment prompted the Insu-
lar Government to directly develop the economy through government
enterprise. Beginning 1918, the government harnessed public capital and
other resources and invested these in its business ventures. Financing came
from increased revenues, which had more than tripled since 1910, as well
as unprecedented export earnings from the wartime economic boom.15
These funds were used to nationalize the two railroad companies16 that
were revitalized during the Taft era and to charter and capitalize cor-
porations like the Philippine National Bank,17 the National Coal Com-
pany, the National Petroleum Company, the National Iron Company,
the National Cement Company, and the catch-all National Development
Company.18
To ensure Filipino control over these public companies through the
Legislature, Speaker Osmeña conceived of the Board of Control, which
traced its origins to the defunct Sugar Central Board’s voting commit-
tee. Composed of the Governor-General, the Senate President, and the
Speaker of the House, the Board of Control functioned as a “super
board of directors.” It was the economic counterpart of the political
“super-cabinet” called the Council of State, which Harrison and Osmeña
constituted to enable Filipino legislators to participate in running the
insular bureaucracy and to share in the American executive’s exclusive
prerogatives under the Jones Law. Just as the Council of State exceeded
its advisory role and administered the Insular Government’s daily oper-
ations, the Board of Control likewise went beyond merely voting for
members of the different companies’ board of directors, but also over-
saw these corporations’ day-to-day business. This strategy was devised to
evade the assignment to the executive department, under both American
constitutional law principles and organic laws,19 of the responsibility for
managing government property, like government-owned corporations.
Although Harrison consulted Osmeña regarding appointments for these
companies’ directors, officers, or technical personnel, he still had final say,
since voting power over government stock was vested in his office. Like the
Council of State, the Board of Control was rationalized as a way to hold
the management of public affairs, this time in the form of publicly owned
companies, accountable to the Filipino people. Speaker Osmeña intended
to grant these public enterprises special advantages, like exemptions from
congressional limitations imposed on private companies, so that they
could better compete with foreign companies. Thus, when drafting the
National Development Company’s charter in 1919, Osmeña inserted a
provision authorizing the company “to acquire, hold and manage, alien-
ate and encumber lands, mines, and mining claims in excess of the limit
as to area established by law” and sought the US president’s approval
for this feature. His strategy had the support of Acting Governor-General
Charles Yeater, who cabled Washington, DC, “urgently recommend[ing]
that Presidential sanction be obtained as soon as possible” so the National
Development Company could “increase the areas of production specially
for food purposes.” Yeater also explained confidentially that:
While the public land Bill remains unapproved by the President, the aims of agri-
cultural development by the National Development Company are not only nec-
essary but also vitally essential to the welfare of the Filipino people, for it would
enable the small corporations composed of Americans, Filipinos, or both, to com-
pete with undesirable foreigners who have hitherto shown to possess unlimited
financial resources, and who have legally, or otherwise, been securing possession
of estates belonging to Spaniards, Americans, and Filipinos, mostly non-residents.
Besides the Government is keenly interested in securing control of about 11,000

hectares of private land located on the Pacific Coast of Luzon in one of the most
strategic points.20
Writing Quezon, Osmeña described the reaction of the foreign business

community “and also part of the American” as “visibly alarmed.” He
supposed that “the large English exporting houses are already organized
to checkmate the National Development Company and if possible to
make it fail,” but was confident that the bill “has been very carefully
prepared and drafted” and noted that “the explanatory notes and
other statements publicly given have not been in any part successfully
attacked.” While foreign business was apprehensive, “the Filipino mer-
chants and the producers of the country have given it their unconditional
approval. Many foreigners including some English brokers seem satisfied,
but undoubtedly there is a very strong undercurrent, and naturally the
monopolists and the price fixers are preparing for a great fight.”21
Finally, the Insular Government used the Philippine National Bank
(PNB) to harness public capital for use by Filipino businesses. If the
Board of Control resurrected the Sugar Central Board’s voting commit-
tee, this largest of government corporations and the jewel of the Insular
Government’s crown assumed the defunct Sugar Board’s role of financing
of the Philippine sugar industry. American and Filipino companies alike
invested in new centrifugal mills, but Filipino concerns were financed
primarily by PNB.22
Politics, Professionalism, and the Public Interest

Directed and overseen by the Board of Control, PNB business operations
exemplified the administration of other government corporations. In turn,
Board of Control business management mirrored the running of the insu-
lar bureaucracy by the identically constituted Council of State. From the
outset, however, Governor-General Harrison and most Filipino politi-
cal leaders regarded PNB “less as a bank than as a political and devel-
opmental tool of the government and the majority party.”23 The result
was that Filipino leaders privileged their view of what would best serve
the interests of national development over American arguments about the
merits of professionalism and business conservatism.
PNB held deposits of Insular Government revenues and currency
reserves, which it employed toward national economic development by
adopting what Stanley describes as a lax and open-handed loan policy.
That is, PNB lent government funds without sufficient security and made
annual advances to sugar growers. Assuming that the inordinately high

wartime prices would prevail, the Bank tapped into the Insular Currency
Reserve Fund deposited in its New York branch and used it to finance
generous unsecured long-term loans, which allowed the sugar industry to
reap tremendous profits during the wartime boom. When hard times hit
and prices plummeted, the centrals defaulted, leaving PNB with bad loans
and the Insular Government, with inadequate reserves and a currency that
was no longer backed in gold.24
Further draining PNB’s resources were self-dealing loans made to cor-
porate officers and directors and unsecured loans brokered by legislative
members for their political supporters and in consideration of a com-
mission.25 Harrison’s successor Governor-General Leonard Wood later
noted that “very little of the money” of this agricultural bank “reached
the small farmer,” as “the great bulk of it went into enterprises of a
speculative character conducted by an inexperienced personnel.”26
While “professionalism” and “efficiency” had been invoked to jus-
tify Filipino alterations to the Insular Government machinery, they were
anathema to its administration, for there was open disdain for profes-
sional management if this meant hiring American experts. As PNB’s first
president, H. Parker Willis brought to his job “the perspective of a bank-
ing theorist and a booster of American foreign trade.”27 Aiming to lower
the cost and increase the availability of credit in the Islands, he was also
keen to improve the quality and professionalism of Philippine banking.
But Willis’s efforts to hire technical experts to train his Filipino staff were
mightily resisted by Filipino board members, especially General Venan-
cio Concepcion, a protégé of Speaker Osmeña who later became PNB
president. Filipino directors told Willis that experts were an “irrelevant
luxury” and that Filipinos were already aware of their country’s bank-
ing needs. Consequently, “during the first four years of its existence, the
bank had only four officers trained in modern banking practice; of these
there were never more than two employed at any one time, and one
subsequently proved either incompetent or dishonest.”28
Thus did the PNB become a vehicle for political patronage, becoming
Osmeña’s domain as the Manila Railroad’s was Quezon’s.29 Political
appointees with little or no experience in modern banking filled positions
that Willis would have staffed with experts. Similarly, political appointees
filled jobs in other government companies, as they did in the insular
bureaucracy. Government work sometimes overlapped with company
jobs, as illustrated by the practice of provincial treasurers serving as PNB
representatives and collecting taxes along with deposits.30 Government
companies provided rich opportunities for graft through political loans as

well as in the practice of Manila Railroad corporate officers of distributing
free passes, discounting fares,31 or using railroad workers for personal
construction projects.32
Filipino political leaders had a tremendous incentive to multiply the
number of positions, whether in the insular service or in government
companies, in order to expand government largesse for distribution to
political supporters and thus tighten their grip on power. Upon assuming
the reins of office from Harrison, Governor-General Wood echoed Health
Director Heiser’s observation at the outset of Filipinization that “the ten-
dency of the people is to a top-heavy bureaucracy, a very great excess of
personnel, and the creation of a great number of underpaid positions.”
Indeed, this new practice reversed the earlier and highly resented Taft-
era “tendency toward a limited number of officials with higher salaries
and greater efficiency.”33 Thus, talk of “professionalism” and “exper-
tise,” in both the insular administration and government companies,
became “American” just as talk of “nationalism” and “politics” became
“Filipino.”
Filipinizing the Public

Apart from getting into business, the Insular Government promoted
Filipino industries through the complementary strategy of discriminating
against foreign competitors. Rationalized as serving the public interest,
official protectionism against threatening aliens, along with official pater-
nalism toward Philippine society’s uncivilized and incapacitated mem-
bers, formed the context in which “the public” acquired a distinctly
Filipino identity. Having equated themselves with “the people” in order
to wrest insular administration from the colonial executive, Filipino legis-
lators also identified with “the public” to warrant deploying government
resources toward their definition of the Filipino majority’s interest. Thus,
what was best for the Filipino people was what its representatives, rather
than experts, said it was.
Chapter 5 traced the construction of the Insular Government’s capac-
ities in the course of due process challenges against its interventionist
measures. Similarly, this section illustrates the forging of the public’s
Filipino personality in landmark equal protection cases filed against the
government’s discriminatory policies. To imbue a universal category with
a specific identity, Associate Supreme Court Justice George A. Malcolm
enlisted Progressive legal theory. By vindicating the interests of the
Filipinizing the Public 187
Filipino public, however, Malcolm’s seminal jurisprudence enabled the

very majoritarian tyranny that the transplanted constitutional tradition
was designed to impede. As Harrison was supportive of Filipinizing colo-
nial politics, so, too, was Malcolm of Filipinizing colonial constitutional
law.
Protectionism
Who comprised the Filipino “public” was defined largely by who it was
not – that is, by identifying those who were either denied government-
administered privileges or subject to more stringent government regula-
tion. In 1918, for instance, the Insular Legislature limited the Collector
of Customs’ issuance of certificates of Philippine registry only to ves-
sels wholly owned by US nationals, a term that encompassed both US
and Filipino citizens. From the late nineteenth century British vessels had
dominated the overseas carrying trade of the Philippines, outnumber-
ing those of all other flags until American shipping began to catch up
after free trade commenced in 1909 and British ships were lost follow-
ing World War I.34 Although incorporated under Philippine laws, Smith,
Bell & Co. was wholly owned by British nationals; thus, Justice Malcolm
justified excluding “undesirable foreigners” like them from Philippine
coastwise trade as vital to secure national survival. For steamship lines
are “[l]iterally” and “absolutely” an insular territory’s “arteries of com-
merce,” which, if severed, then “the life-blood of the nation is lost,” but
when protected, “then the security of the country and the promotion of
the general welfare is sustained.” Thus, Government “assumed to act for
the all-sufficient and primitive reason of the benefit and protection of its
own citizens and of the self-preservation and integrity of its dominion.”35
The Insular Legislature also targeted Chinese merchants by requiring
that receipts and books of account be kept in the English or Spanish lan-
guage or any local dialect. The “Chinese Bookkeeping Law” was defended
as a neutral means not only of facilitating efficient revenue collection from
a community that both the Spanish and American-era governments had
difficulty administering, but also of preventing fraud and deceit from
being perpetuated against non-Chinese customers and government rev-
enue agents.36 The law’s impact, however, was far from neutral, as it
discriminated against Chinese businessmen who could neither speak nor
read either language. Thus, it triggered a storm of protests from both
Chinese businessmen and the insular business community that relied on
them and generated a series of diplomatic appeals from China, all leading
to attempts to repeal the law. Acknowledging the intense reaction against
the law, Justice Malcolm conceded in Yu Cong Eng v. Trinidad the dis-
criminatory impact and constitutional invalidity of literally applying the
law. Still, Malcolm tried to save the law by limiting it only to “such books
as were necessary in order to facilitate governmental inspection for tax
purposes.”37 On writ of error to the US Supreme Court, Chief Justice
William Howard Taft, whose stint in the Islands had attuned him to the
importance of the Chinese to the Philippine economy and the depth of
native prejudice against them,38 reversed the Insular Court and adopted
the literal meaning of the statute, believing that “the Philippine Legislature
knew the meaning of the words it used” and intended it to “forbid the
Chinese merchants from keeping the account books of their business in
Chinese,” because it “thought the danger to the revenue was in the secrecy
of the Chinese books.”39
Paternalism
Along with protectionism against aliens, Filipino paternalism toward
“social lepers” like prostitutes40 and “uncivilized” indigenous tribesmen
also furnished the occasion for constructing the Hispanicized Filipino
majority as “the public.” In other words, who comprised this “public”
emerged in the context of the government’s discriminatory practices, both
protectionist and paternalistic, against those excluded from the major-
ity’s construction of their national community. Upholding issuances that
forcibly relocated the Mangyans of Mindoro to unoccupied public lands
against due process and equal protection challenges, Justice Malcolm
wrote that while the Fourteenth Amendment due process clause, which
furnished the prototype for the Philippine due process and equal protec-
tion clauses, applied to all persons within the territory without regard
to race, nationality, or creed,41 this enumeration excluded the one dis-
tinction that was relevant – the level of civilization. In other words,
liberty was only for the civilized: it was “a legal and refined idea, the
offspring of high civilization, which the savage never understood, and
never can understand.”42 He clarified that the Mangyans’s legal designa-
tion as “non-Christian” referred not to their religion, which subsumed
them under due process and equal protection guarantees, but was “pred-
icated on the civilization or lack of civilization of the inhabitants,”43
which federal precedents regarding Native American tribes had excluded
from Fourteenth Amendment analysis. A frank articulation of a central
yet suppressed assumption of the liberal paradigm, Malcolm’s statement
reiterated constitutional colonialism’s civilizing rationale that Secretary
of War Elihu Root articulated at the outset of American rule. This time,
Filipinizing the Public 189
it was invoked to support efforts by civilized Filipinos to colonize and

modernize the uncivilized among them.
American colonial policymakers like Secretary Root had rejected
domestic US tribal government models as inappropriate to the Islands
and instead constructed what historian Paul Kramer terms a “bifurcated”
racial state apparatus to separately administer Hispanicized Filipinos and
“non-Christian” Filipino tribes following the approach adopted by the
preceding Spanish colonial state.44 Yet Rubi accommodated this Span-
ish apparatus within American liberal constitutionalism by invoking the
precedents justifying their Native American analog. Justice Malcolm
asked, “May the Manguianes not be considered, as are the Indians in
the United States, proper wards of the Filipino people?” Besides, “what
the Government wished to do by bringing them into a reservation” was
akin to what Congress had done for their Filipino wards in general,
which was “to gather together the children for educational purposes, and
to improve the health and morals,” in other words, “to begin the pro-
cess of civilization.”45 Rather than characterize paternalistic treatment
of the Mangyans as typical of how Anglo-American liberalism excluded
those incapable of giving contractual consent from its universal rules,
Malcolm framed the question as being “above all one of sociology.”46
Malcolm seems to have followed the lead of Progressive lawyers like Louis
Brandeis, later US Supreme Court Justice, who attempted to undermine
classical liberal constitutionalism’s equality in theory by introducing evi-
dence proving inequality in fact47 and succeeded in convincing the US
Supreme Court to sustain the validity of a statute that limited women’s
work hours.
The Progressive assault against US Constitutional Law’s classical legal
paradigm is conventionally traced to the iconic 1905 case, Lochner v.
New York.48 For impairing the freedom of contract, the minimum hours
law in Lochner was voided, despite evidence that long working hours
severely impaired the health of New York bakers. For unmasking the fail-
ure of abstract legal categories and operations to produce the “right” and
“just” result, Lochner is credited with galvanizing Progressive opinion
and leading “to a fundamental assault on the legal thought of the old
order.”49
When Rubi was decided, the attack on legal classicism was under-
way, but far from over. The shift from the classical legal ideal of a neu-
tral nightwatchman state to a constitutionally legitimated interventionist
government would not be complete until the New Deal. Legal historian
Morton Horwitz traces the critique’s origins to a “crisis of legitimacy
generated by the fantastic social and economic changes during the gen-
eration before World War I.” The crisis itself emerged from the stark
disconnect between social, economic, and political realities, on the one
hand, and their legitimating paradigm, on the other – between “law in
action” and “law in the books.” Engendered by factors like economic
concentration in cartels, urbanization, immigration, and industrializa-
tion, increasing inequality and the struggles that ensued from it “drew
into question the dominant old conservative commitment to the ideal
of a neutral, non-distributive state.” Painted in the broadest strokes, the
critique was launched by Progressive scholars, famously represented by
Roscoe Pound, and continued by the Legal Realists, just as prominently
represented by Karl Llewellyn. Both movements challenged legal classi-
cism’s attempt to sharply distinguish between law and politics and “to
portray law as neutral, natural, and apolitical” rather than historically
determined and socially constructed. But while Progressives remained
confident “about the ability of reason to arrive at civilized and human-
itarian values” and focused their reform efforts primarily on the courts,
Realists “had lost much of the pre-war faith in reason, both as a reliable
source of moral understanding and as a powerful internal guide to law,”
and opted instead for statutory and administrative remedies.50
As Chapter 9 will show, Lochner would eventually spawn its insular
counterpart in the 1924 case People of the Philippines v. Pomar,51 which
invalidated maternity leave legislation and explicitly invoked Lochner for
the first time in a Philippine decision. Like Lochner, Pomar would also
rouse Progressive sentiment in the Islands. Nonetheless, even in 1918, the
influence of these new trends is discernible in Malcolm’s thinking from
the following passage from Rubi:
The doctrines of laissez faire and of unrestricted freedom of the individual, as

axioms of economics and political theory, are of the past. The modern period has
shown a widespread belief in the amplest possible demonstration of governmental
activity. The courts unfortunately have sometimes seemed to trail after the other
two branches of the Government in this progressive march.52
Justice Malcolm’s landmark equal protection cases introduced to Philip-

pine Constitutional Law a decidedly progressive tendency to inform the
classical paradigm’s universal and abstract categories with a sensitivity
and openness to social context.53 For Malcolm, this context was that of
a long disempowered Hispanicized Filipino majority seeking to construct
a nation and take control of its destiny. Thus despite American liberal
constitutionalism’s deep-seated and long-standing fear of majoritarian
Conclusion 191
despotism, the Philippine constitutionalism after which it was mod-

eled developed justifications precisely to sanction this majority during
the Harrison administration. Sympathetic to Filipino aspirations, Mal-
colm helped cast their struggle in constitutional language and portrayed
Filipino hegemony as giving flesh to the “faith in the rule of the majority,”
which he regarded “another unwritten law of popular government of rel-
atively recent development.” While acknowledging that “there are some
rights in every free government which are even beyond the control of the
state – beyond the control of the despotism of the majority,” Malcolm
nonetheless insisted that “submission of the minority in times of stress
and political excitement must be learned if peaceful democracy is to pros-
per.”54 Ironically, however, while Malcolm’s well-meaning progressivism
may have helped free the Insular Government from the doctrinal obsta-
cles that frustrated its mainland counterparts, it also operated to consti-
tutionalize discrimination by representatives of the Hispanicized Filipino
majority, who had captured the Insular Government and equated itself
with “the public,” against those who were not part of their public, both
during the American colonial period and beyond.
Conclusion
The transformations wrought by Filipino leaders on the Insular Gov-
ernment’s structure and policies during the Harrison administration
stood on shaky constitutional ground. Their questionable constitutional-
ity notwithstanding, these institutional innovations had yet to be chal-
lenged in court. As long as dealings between American and Filipino
officials in the Insular Government remained cordial, it mattered little
that these arrangements were fluid and informal. Keen to preserve har-
mony, perhaps neither side was eager to have litigation erupt in openly
adversarial relations and to risk voiding devices that had expedited the
colonial collaboration by which consent to American rule was expressed.
Thus, despite holding all the proverbial cards, American colonial officials
had always been loathe to play them, lest their exceptional colonialism
be revealed to be as unexceptionally coercive as its traditional counter-
parts. Capitalizing on the need of American colonial actors to maintain
coherence, Filipino legislative leaders expanded their presence within the
colonial constitutional order and hastened the pace of the tutelary pro-
gram. They grounded strategies reminiscent of those institutionalized by
the defunct Malolos charter on fundamental American principles like
popular sovereignty and foundational institutions like representation to
prove that theirs was a government ruled by American understandings of

the rule of law and ready for independence.
Similarly, the ways in which Filipino political leaders wielded the Insu-
lar Government to vindicate the majority’s interests would have offended
classical understandings of the American liberal constitutional tradi-
tion. Intended to protect minorities against the redistributive tendencies
of democratic majorities, American constitutional rules and precedents
seemed to warrant in the Islands precisely what it was designed to prevent.
More research into the individual circumstances of the period’s Philippine
Supreme Court justices would be necessary to discover their motivation
in voting with Malcolm. Nonetheless, even without this information, it
is clear that the justices did not have to twist US precedents to arrive
at outcomes that seem contradictory to the system’s objectives, for they
could draw from a jurisprudence that was itself in flux ample support for
these decisions, perhaps no matter which way they went. It seems the rule
of law was neither always determinate nor unequivocal.
In many ways, it could even be argued that the Insular Supreme Court
behaved in the Harrison years as it has always had toward its co-equal
branches. That is, it was true to its institutional role in deferring, as it
had during the Taft era, to the exercise by the executive and legislative
departments of their constitutionally assigned discretion. During the Taft
years, the Philippine Supreme Court tended to assent both to the Philip-
pine Commission’s infusion of progressive content into the “public pur-
pose” category and invocations of this ground to justify its interventions.
Under the Harrison regime, it seems to have acceded to the Filipino iden-
tity given to this public by the Filipino people’s elected representatives.
Indeed, because democratic political participation was both the incar-
nation and barometer of Filipino consent to American rule, it afforded
Filipino political elites in the Insular Legislature a wedge. In doctrinal
terms, Filipino legislators had invoked their status as the solely elected
representatives to the Insular Government to appropriate two of the most
powerful words in what was becoming a common constitutional lexicon,
“the people” and “the public.” By equating themselves with “the people,”
in believing themselves to constitute “the public” whose interests popu-
lar governments were created to protect and pursue, Filipino legislators
justified their capture of the Insular Government and directed its awe-
some capacities toward realizing their vision of national development.
Rather than make Americans out of Filipinos, the Insular Government
now claimed the Philippine Islands for Filipinos, all the while deploying
the same imperial strategies that continued to be justified as consistent
Conclusion 193
with the inherited and shared American liberal constitutional tradition.

To reject these Filipino constructions would perhaps have amounted to
thwarting the Filipino people’s will, risking the appearance of coercive-
ness, and giving the lie to American democratic commitments.
Beneath the fear of projecting insincerity, however, lay a deeper con-
tradiction that was unearthed by the attempt to reproduce the American
democratic and constitutional tradition in the Islands. In a republican
regime premised on popular sovereignty, the disparity in having the few
govern the many is obscured by the belief that the rulers and the ruled
were one. In a colonial setting, however, this fiction becomes implausible.
Yet American self-image and prestige hinged on maintaining the appear-
ance of consent that made the fiction of exceptional colonialism viable.
The threat posed to the credibility of their colonial experiment and, ulti-
mately, to the tradition with which it was supposed to be compatible had
operated against American colonial actors insisting on the prerogatives
of their offices and had kept constitutional conflicts out of the courts.
Sustained by cooperation, Filipino parliamentary devices and pro-
grams would finally face official legal challenge when Filipino-American
relations within the colonial government broke down irreparably during
the succeeding Wood administration. When that time came, the Philippine
and US Supreme Courts would reinstate the Jones Law’s design, enforc-
ing sovereign hegemony through constitutional law. But even in 1920,
Filipinos already began to sense that “portentous clouds” were “hovering
in a rather insecure political sky.” Apprehensive that the new Republican
administration of Warren G. Harding would revoke their hard-won con-
cessions and reinstate the Taft era, Filipino leaders maneuvered furiously
to preserve their gains, leveraging the argument that theirs was a stable
government deserving of independence, “as they saw the boat which car-
ried the Democratic Governor-General fade away into the tempestuous
China sea.”55
9
Progressivism, Populism, and the Public Interest
Restoring the Taft Era and the Cabinet Crisis of 1923
As he bade the US Congress farewell, President Woodrow Wilson

declared, “The people of the Philippine Islands have succeeded in main-
taining a stable government.” Because they had met the Jones Law’s
conditions, “it is now our liberty and our duty to keep our promise to the
people of those islands by granting them the independence which they so
honorably covet.”1 Wilson thus effectively adopted the Filipino criteria
for stable government. Drawn from standards imposed by War Secretary
Elihu Root to warrant US withdrawal from Cuba, these required only that
Filipinos operate a government legitimated by suffrage and restrained by
constitutional protections for liberty2 – formal measures far less stringent
than the qualitative ones by which Taft-era officials had adjudged Filipino
fitness for self-rule.
Warren G. Harding, the new US president, was inclined neither to
concur with Wilson’s appraisal of Filipinization nor to continue his poli-
cies. Chairman of the Senate Committee on the Philippines from 1919
to 1921, Harding was knowledgeable about both the Republican colo-
nial program and its Democratic alterations and regarded claims of Fili-
pino readiness with skepticism. Before formulating his policy, President
Harding commissioned two Republican veterans of the Philippine insular
service to prepare a report assessing increased Filipino autonomy during
Governor-General Francis Burton Harrison’s administration. Compris-
ing this two-man team were General Leonard Wood, Harding’s erstwhile
rival for the Republican presidential nomination and previously military
governor of Cuba and the non-Christian Philippine island of Mindanao,
and former Governor-General W. Cameron Forbes.
194
Progressivism, Populism, and the Public Interest 195
Predictably, the Wood-Forbes Report concluded that Filipinization

had been a disastrous sequel to the Taft era. Completed after four
months of extensive travel and intensive interviews conducted all over
the archipelago, the Report emphasized the Government of the Philip-
pine Islands’ deteriorating efficiency, particularly in public health and
the administration of justice.3 Moreover, the Report lamented the
dismal performance of government corporations, singling out the Philip-
pine National Bank debacle as “one of the most unfortunate and darkest
pages in Philippine history”4 for bringing the PNB and the Government of
the Philippine Islands to the brink of financial ruin. Although the Report’s
verdict was harsh, even Speaker Sergio Osmeña and Senate President
Manuel L. Quezon privately conceded its accuracy.5
While the Report found the desire for independence among Christian
Filipinos everywhere, it did not, historian Frank Golay writes, “equate
desire with readiness.”6 Nonetheless, the authors qualified that they did
not suggest that Filipinos were inherently incapable of self-government,
but only that they lacked the necessary experience – experience that eluded
them despite their near-total control of the Insular Government during
the Harrison years. That period demonstrated that rapidly transferring
responsibility to the Filipino people’s representatives was theoretically
unsound, because it involved skirting constitutional rule of law mecha-
nisms, such as those separating the legislature from the executive and the
public from the private. Unsurprisingly, the Report recommended that
Congress annul around 60 Philippine statutes that eroded the Governor-
General’s powers if lawmakers refused to correct them7 and that the gov-
ernment should “get out of and keep out of such business.”8 Meanwhile,
independence would have to wait until Filipinos absorbed their gains
in self-government.9 For the United States to withdraw “without giving
the Filipinos the best chance to have an orderly and permanently stable
government” would constitute “a betrayal of the Philippine people,” “a
misfortune to the American people,” “a distinct step backward in the
path of progress,” and “a discreditable neglect of our national duty.”10
Appointed as the new Governor-General, Wood worked to restore
Taft-era political and economic arrangements. Seeking to remove Filipino
legislators from the administration and to divest the Insular Govern-
ment’s businesses, he was mightily resisted by Filipino political elites, this
time under Quezon’s direction. The 1920s saw great changes, not only
in American colonial personnel and policies, but also in Filipino lead-
ership and strategies. Beginning in 1921, Quezon challenged Osmeña’s
“unipersonalism,” which denoted the latter’s belief that the independence
196 Progressivism, Populism, and the Public Interest
campaign’s success required a single, unified directing leadership and jus-

tified Osmeña’s practice of vetting all recommendations for government
appointments. Instead, Quezon proposed “collective leadership” and ulti-
mately split from the ruling Nacionalista Party in order to found his own
Partido Nacionalista-Collectivista for the 1922 elections. In this struggle
for preeminence, Osmeña left the House of Representatives to run for the
Senate and challenged Quezon for the Senate presidency. While winning a
Senate seat, Osmeña lost the election for that body’s presidency. Quezon
thereafter installed his ally Manuel Roxas as Speaker and reunited the
two wings of the Nacionalista Party under his command.
New colonial players transformed the colonial relationship. The spirit
of cooperation that pervaded the Harrison years was superseded by con-
flict between intractable competitors pressing two incompatible programs
for the Philippine colonial state – Wood’s Taft-era restoration, on the one
hand, and Filipinization, on the other. These contests tracked in minia-
ture the major themes and fault lines of American colonialism’s attempt
to democratize and develop the Islands under the rule of law. At stake
was control over the Insular Government, which had at different points
implemented both agendas. This chapter examines Wood’s dogged efforts
to re-impose American control of the colonial government, which pro-
voked Filipino resistance, significantly, in the “Cabinet Crisis.” This en
masse resignation of Filipino cabinet secretaries marked the first big break
between American and Filipino colonial officials and led to open warfare
between them. The next chapter traces how political battles between
Wood and Quezon migrated to the legal arena and culminated in the
“Board of Control Cases,” a political and legal high watermark that
permanently influenced the Philippine constitutional order.
Separating Powers
Governor-General Wood inherited a bankrupt Insular Government
and hemorrhaging government companies. Convinced that rampant
Filipinization had caused this ruinous state of affairs, he blamed the
Wilson administration and Governor-General Harrison personally for
failing to fulfill American colonial responsibilities. Particularly, Wood
believed that the “entangling net” that Filipino legislators had woven
around the Governor-General “greatly hampered him in the exercise of
powers granted under the Jones Bill” and thus attributed the “wretched
condition” of Philippine finances and government administration to the
practice of leaving Department Secretaries “to do entirely as they liked,
without coordination or direction.”11
Separating Powers 197
In turn, failure to supervise Department Secretaries owed much to

administrative directives that isolated the Governor-General from the
bureaucracy and confined his dealings to Department Secretaries answer-
able, not to the colonial executive, but to Nacionalista legislators who
also headed their party. Wood thus felt that “Congress may have to take
necessary action to declare null and void the legislation which modifies or
diminishes the power of the Governor-General,” because with the Jones
Law’s “provisions originally drawn, in full vigor, a strong Governor-
General ought to be able to handle the situation and put the Islands
back on the road to Progress and Good Government.”12 Even without
congressional action, Wood was determined to reinstate Taft-era politi-
cal and economic programs. Informing Filipino leaders that they could
hardly “expect the United States to give them further autonomy now until
at least the wreck of the recent mismanagement had been cleared up,”
Wood thought it imperative to exercise tighter executive, and therefore
American, control over Philippine affairs. He would contain Filipinos
within their institutional roles under the Jones Law and consign them
to their former status as political apprentices. Reassuming firm control
over public policies and finances, Wood also resolved to get the Insular
Government out of private business. Paternalistically, he likened Filipinos
to “a boy who had been started in business by his father and had made
a more or less complete fiasco of it,” but “without attempting to clear
away the wreck and show some signs of organizing power and the wis-
dom which he had acquired from experience, was demanding, without
any accounting or explanation, money for another start.”13
Scaling back Filipinization required recapturing the Insular Govern-
ment from Filipino political leaders who had long labored to consolidate
their power over it. Anticipating conflict, Wood nonetheless believed that
the law was on his side. Convinced that Harrison-era accommodations
were unconstitutional, he tackled them in three ways: he vetoed laws
broadening the scope of authority of hybrid bodies like the Council of
State; he bypassed provisions channeling decision-making to such bodies;
and he attacked questionable measures outright. His actions triggered
a political crisis and produced a serious rupture in colonial relations,
which thereafter were no longer collaborative but confrontational. Both
sides thereafter sought alternative forums: Quezon and the Nacional-
istas went over Wood’s head and tried to deal directly with Washing-
ton, while Wood took his case directly to the Filipino public by releas-
ing information documenting their leaders’ disastrous Harrison-era track
record. Both sides eventually faced off in court in the Board of Control
cases.
Vetoing Unconstitutional Bills

During his first two legislative sessions, Governor-General Wood
vetoed seventeen bills, exceeding the total rejected by Governor-General
Harrison in his entire seven-year administration. By March 1923, Wood
had vetoed fifty bills. When Quezon complained that Wood was trigger-
happy with veto power, Wood explained that he “could not stand for
anything which in any way affected the Jones Law,” “did not care to put
myself on record as being willing to have the change made,” and “was
fundamentally opposed to anything which further curtailed the power
of the Secretary of Public Instruction or the Governor-General.” Indicat-
ing that he would strictly adhere to the Jones Law’s text, Wood would
not hesitate to wield his executive power and remarked that Quezon
seemed unable to grasp that “the veto is just as much the privilege of the
Governor-General as legislation is the privilege and power of the Legis-
lature and each is supposed to exercise its authority with discretion and
that working in combination they make an effective balance.”14
Articulating the Filipino response to Wood’s attacks was Jorge Bocobo,
Dean of the University of the Philippines College of Law, a Civil Law
expert, and later the University’s fifth president. Like Maximo M. Kalaw,
Bocobo was a scholar, lawyer, and educator aligned with the indepen-
dence movement. At the height of the conflict between Wood and Que-
zon, Bocobo published a series of articles in Philippine newspapers that
were collected and compiled in General Wood and the Law: A Discus-
sion of the Legal Aspects of the Political Crisis in the Philippine Islands.
Bocobo argued, “General Wood’s construction of his veto power nulli-
fies the main object of the Jones Law which is that the Filipino people, in
the words of the preamble, ‘may be the better prepared to fully assume the
responsibilities and enjoy all the privileges of complete independence.’”15
After all, how could Filipinos learn to make wise laws “if the Governor-
General uses his veto power to the extent of disapproving any bill which
he thinks is not good for the country, even though it may not affect
American sovereignty?”16 Instead, the Governor-General’s veto power
should extend only to four kinds of bills, namely, those that were mani-
festly unconstitutional; that violated any treaty of the United States with
other nations; that discriminated against the citizens or subjects of other
nations; and that challenged American sovereignty over the Islands.17 For
the executive to veto even “bills of purely domestic concern” effectively
nullified the Philippine Legislature’s law-making power.18
Opposing a literal construction of the Jones Law, Bocobo invoked the
same democratic considerations that justified greater Filipino autonomy
to acquire governing experience. Attentive to Filipino consent, Taft-era

American colonial officials portrayed their work as serving the Filipino
people’s interests and enjoying their leaders’ assent. But instituting elec-
tions allowed Filipino representatives to equate themselves with “the
people” and “the public,” substitute American conceptions of the public
interest with their own, and successfully monopolize popular sovereignty.
Thus, for his actions to be viewed as legitimate, Wood could no longer
simply assert his prerogatives under the Jones Law. But neither would he
accept Filipino definitions of the public interest.
Wood rejected the notion that Filipino interests were served by the
mere fact that the people’s representatives were running government.
Much like Taft-era officials, Wood argued that it was efficient and eco-
nomical government that truly served the Filipino public’s interest.19 This
required American professionalism and expertise exemplified by the pre-
Harrison insular service.
Indeed, Wood cast the public interest in the Progressive language of
the Taft era. Reemerging during the PNB debacle of the Harrison years,
this strategy resembled that employed by civil service reformers to free
state and federal governments from the grip of party patronage in late
nineteenth-century America. Friend to President Theodore Roosevelt and
fellow roughrider, Wood was a veteran of this reform movement, having
worked closely with Secretary Root to professionalize the US Army as its
Chief of Staff. Wood imposed Progressive standards of professionalism,
efficiency, and economy on the conduct of Insular Government business
and measured Filipino capacity against this yardstick. Thus, at his first
meeting with Department Secretaries, Wood declared that his “function
here was to establish a stable government, efficient, economical, and pro-
gressive.”20 Against his management style, he characterized Filipino offi-
cials as practicing politics. Filipino intellectual leaders like Kalaw rejected
Wood’s criteria, dodged the issue of Filipino inefficiency and incapacity,
and insisted that responsibility was indispensable for training, much like
War Secretary Lindley Garrison’s testimony before the Senate Committee
on the Philippines in support of the Jones Law:
I do not see how you could ever determine that a specified person, man, woman,
or child, or what not, was capable of doing or not capable of doing a particular
thing unless you pretty fully put him on his own responsibility as far as you could
and see what he would do. I think the more nearly you can give these people full
responsibility, holding sufficient ability to take back or to stop or to prevent the
uncontrolled consequence of action, the better.21
Evasive Maneuvers
Governor-General Wood attempted to reestablish his authority over
the Department Secretaries by bypassing Harrison-era administrative
procedures requiring Council of State assent to conduct Insular Gov-
ernment business. When Justice Secretary Jose Abad Santos revealed
that Quezon had summoned cabinet members to his office, Wood read
it as “an attempt to force through the much-discussed plan of making
the Secretaries responsible to the Legislature.” Indeed, this “bold,
impertinent, and unwarranted attempt to seize authority which belongs
to the Governor-General” was the “first discordant note” in his dealings
with Filipino officials. Reading Abad Santos the riot act, Wood declared,
“the method of government in the Philippines was definitely defined in
the Jones Bill and it would be continued as therein provided without
change or modification”; thus, “as long as they were Secretaries of the
Governor-General in official relations they will be responsible to him.”
Consequently, if the Secretaries “felt that was contrary to their theory
then there was only one thing to do, either protest or retire,” because
“under no circumstances would I for a moment tolerate their considering
themselves as responsible to the Legislature; that the American form of
government would be adhered to and the British not adopted. . . .”22
Wood found the whole procedure so outrageous that he summoned
Quezon and Roxas to his office that same day. He called the practice of
“calling of the Secretaries of the Governor-General for consultation” an
“act of great discourtesy” and asked Quezon “what he would think of
my sending for his secretaries and assistants.” Neither would he stand for
the Secretaries’ custom of drafting legislation “as they thought necessary”
and submitting the bills directly to the Legislature:
[T]his procedure could not be tolerated; that I should be very glad to have them
draw up legislation and transmit it directly to the Legislature, but only after I had
seen it and approved it; that I would not tolerate the establishment of a procedure
which would result in my own Secretaries of Departments forwarding legislation
without my knowledge which I might later have to veto; that I reserved to myself
the right to be familiar with everything which went out from this office as an
administrative measure.23
Wood caused the greatest friction when he revoked the Secretaries’ over-
sight authority over their departments’ budget and expenditures in his
effort to restore the Insular Government’s solvency by imposing strict
austerity measures. Outlining his rehabilitation plan when he first met
with Department Secretaries, Wood stressed that “in these days of big
losses, we need economy”; thus, “we have got to run the government at a
very greatly reduced income.” Wood, however, was unwilling to scrimp
on “Public Instruction, Public Health, Public Works” – that is, public
development projects that Taft-era officials deemed “vital to progress.”
Consistent with the Wood-Forbes Report’s findings that “there is a
tremendous, top-heavy personnel in the Government as a rule,” espe-
cially in the “purely administrative,” as opposed to scientific, depart-
ments, Wood asked Secretaries to “take immediate steps” to “get rid of all
unnecessary official employees.”24 Naturally, this policy was stubbornly
resisted, because it threatened a major channel of Nacionalista patronage.
Beyond budget cuts, Wood also demanded increased revenue collec-
tion. Provincial governors, legislative representatives, and Department
Secretaries had repeatedly approached him to request extending the
period for paying land taxes without penalty or remitting them alto-
gether, upon the Interior Secretary’s advice. Wood adamantly refused
and announced his intention “to give no further extensions and that as
good Filipinos they ought to make it clear to their people that the Gov-
ernment could not be run without money and urge them to pay up; that
we were simply drifting from bad to worse.”25 Moreover, he advised
Quezon “very strongly to hold up the Senate bill revoking the assess-
ment for reconsideration.” As the government’s budgets and bonds “were
based on that valuation or the income derived therefrom,” he would have
no choice but to veto the bill if it passed. Besides, the bill’s purpose was
“a purely political one, the Senators and Representatives being moved
to do something to apparently try to decrease taxation, knowing that I
would have to veto it in order to protect the revenues.”26
In refusing to remit penalties for late land tax payments, Wood
ignored the Interior Secretary’s recommendations and bypassed statu-
tory procedures limiting the Governor-General’s role to rubber-stamping
policies recommended by department heads. Indeed, Quezon wrote Wood
arguing that because “the land tax is purely a provincial and munici-
pal revenue,” and “the provincial and municipal governments concerned
having requested and the Secretary of the Interior recommended that the
remission of such penalty be granted,” then “there seems to be only one
proper course for the Insular Government to take, namely, to grant it.”
Disregarding both the local authorities and the Interior Secretary “who,
in this case, is your constitutional adviser” was “to completely ignore
the responsibility of the officials concerned.” Quezon discerned “a grow-
ing feeling among our people that the views of the Filipino officials in
this government, the secretaries of department included, have very little,
if any, weight with you,” which, if “allowed to stand,” would make it

“very difficult to preserve the utmost cooperation of the Filipinos, when
they become convinced that you have little confidence either in their
loyalty or ability.”27 In exactly two weeks, the entire Council of State
resigned, igniting the Cabinet Crisis of 1923.
Open Warfare after the Cabinet Crisis of 1923

Wood sparked the Cabinet Crisis by evading yet another set of admin-
istrative procedures obstructing the Governor-General’s control over the
bureaucracy. Manila Mayor Ramon Fernandez and Secretary of Inte-
rior Jose Laurel had suspended a corrupt American police officer named
Ray Conley for taking bribes and sued him before the Court of First
Instance. When the judge exonerated Conley, Mayor Fernandez and Sec-
retary Laurel urged Governor-General Wood to launch an administrative
investigation. But instead, Wood convened a board composed of the Fil-
ipino Director of Civil Service, the Filipino Undersecretary of Justice, and
an American Constabulary Commander and ordered it to conduct an
investigation. Wood’s board absolved Conley of bribery, but found him
guilty of immorality for keeping a Filipina mistress. Wood then directed
Manila’s American police chief to reinstate Conley, who resigned soon
afterwards,28 prompting Mayor Fernandez and Secretary Laurel to quit
their posts.
Historically, police scandals were political landmines in the Islands.
During Governor-General Forbes’s administration, Captain John Fulton
Green revealed in a lengthy interview with R. McCulloch Dick, the
Philippines Free Press’s editor, his failed campaign to clean up corruption
in Manila’s police force.29 This prodded the publication to launch a series
of exposes in 1911 detailing police corruption in the colonial capital. But
Forbes was reluctant to acknowledge the extent of the problem, as Alfred
McCoy’s exhaustive study of the Philippine police explains, and his
dithering allowed “this police controversy grow into a serious political
crisis.”30
Forbes’s inaction cast doubt upon the sincerity of the American com-
mitment to the rule of law, because American authorities appeared
unwilling to enforce their laws against their own. Frustrated, Filipinos
clamored for reform both locally and in Washington through Resident
Commissioner Quezon. Succumbing to pressure from Democratic Rep-
resentative William A. Jones of Virginia, chairman of the House Com-
mittee on Insular Affairs, the Forbes administration initiated an official
investigation and formed a special administrative tribunal to try the

offending officers. By skillfully manipulating sensitive information gath-
ered through the police’s intelligence network, the accused officers man-
aged to defang the proceedings. The case was dealt a severe blow when
Captain Green’s death rendered his testimony inadmissible. Starting
with a bang, the affair ended with an ignominious whimper, with the
accused officers restored to their posts and their accuser, McCulloch Dick,
“railroaded through the courts” on libel charges.31 This history loaded
police scandals with an especially explosive potential, exposed the fault
lines of colonial politics, and accounts in part for why the Conley Case
and the Cabinet Crisis that it incited became such a cause celebre.
Spurred to write a series of articles explaining the Cabinet Crisis’s
legal dimensions, Jorge Bocobo argued that Wood’s investigative board
was illegal for violating two provisions of the Administrative Code: the
first gave the Interior Secretary final authority to remove members of
the police department; and the second authorized the Governor-General
merely to appoint a special investigator to inquire into a public official’s
conduct, but not to fire him. In his defense, Wood invoked Jones Law
provisions conferring on the Governor-General supreme executive power,
direct authority over the cabinet, and general supervision and control over
all departments.
Bocobo’s rebuttal conceded that while the Governor-General ordinar-
ily could derive his power to remove officials from his power to appoint,
the Insular Government had specified by statute the procedure for remov-
ing Insular Government officials, which superseded the implied right of
removal under the Jones Law. This statute did not violate the Jones Law,
because it had only provided specifically for the power to appoint. Nei-
ther could Wood invoke the general power of supervision and control,
because this did not include the power of removal.32 Contrary to the Insu-
lar Supreme Court’s approach, Bocobo construed the Jones Law selec-
tively, reading it liberally to maximize the prerogatives of Filipino-held
offices, but strictly to limit the Governor-General’s powers.
Apart from summoning the “spirit” of the Jones Law to support the
Filipino Legislature, Bocobo justified his liberal construction of the
organic act by citing state and federal court cases characterizing congres-
sional policy toward territorial governments as one of non-interference. If
Congress took a hands-off approach toward nascent states, then Bocobo
surmised that it must have intended to confer greater autonomy on a
territory destined for independence:
Now if the above principles govern the general policy of Congress with regard
to territories which are organized with a view to admitting them as States in
the future, much more would Congress be disposed to leave local matters to the
Philippine Legislature, because the avowed intention of the American people is to
recognize the independence of the Philippines as soon as a stable government can
be established.33
Bocobo contended that Wood was compelled to enforce even laws he con-
sidered constitutionally questionable. Because the Philippine Legislature
“is a creature of the American Congress and that the Governor-General
himself takes a decisive part in lawmaking by virtue of his absolute veto,
he is bound by the Organic Act to uphold every Act of the Legislature not
vetoed by him.” Consequently, Wood “cannot invoke his ‘general super-
vision and control’ of all departments and bureaus in order to disregard
any law which he thinks is unconstitutional.” Because “all laws passed by
the Philippine Legislature and approved by the Governor-General (and
by the president of the United States in certain cases) can be declared void
for unconstitutionality only by the courts, according to the well-known
judicial power to annul any law because it is unconstitutional,” then
“[u]ntil and unless such action is taken by the courts, every person, from
the humblest citizen to the Governor-General himself, must obey such
laws.”34 Wood, however, continued to ignore laws that he considered
unconstitutional, shifting to the courts the responsibility to definitively
settle the constitutionality of the Insular Legislature’s measures in the
Board of Control cases.
Wood waited almost two days for Fernandez and Laurel to withdraw
their resignations. In the meantime, Quezon, Roxas, Osmeña, and Abad
Santos called on him at his office, “looking very solemn and considerably
worried.” Wood recounted in his diary that Quezon “began a general
line of accusation: that I had overridden the Secretaries, violated the law,
and had generally run wild in the Departments.”35 Eventually, Wood
did receive word from the Filipino leaders, but not what he expected.
At 10:30 p.m. on July 17, 1923, the Council of State submitted their
collective letter of resignation, suspending collaborative colonialism for
the remainder of the Wood administration.
From Political to Legal

The Coolidge administration firmly backed Governor-General Wood.
Three months after the Cabinet Crisis, Wood gathered a group of “impor-
tant Filipino political leaders” to read War Secretary John Weeks’s
statement of support, which he had helped draft. Weeks’s statement
attempted to neutralize fundamental, substantive, and irreconcilable dif-

ferences between the American and Filipino political positions by framing
the “controversy with the Legislative leaders and certain executive offi-
cers [as] at bottom a legal one.” He also clarified that by vesting in
the Governor-General control and supervisory authority over all Depart-
ments and Bureaus, Congress made “these officials directly responsible
to him and not to the Legislature, as in a parliamentary form of Gov-
ernment,” that Filipino legislative leaders attempted to substitute for the
presidential model instituted by the Jones Law. Clarifying that Wood had
not “exceeded or misused” his powers as Governor-General, Weeks sug-
gested that he could ignore legislation that “provides for encroachment
on the authority of the Governor-General,” as this was “violative of the
provisions of the Organic law” and thus “null and void,” and “in no way
binding on that official.”36
Secretary Weeks’s statement of support, however, only temporarily
quelled this dispute. Quezon criticized Washington’s support for Wood’s
autocratic style as hypocritical in light of American claims to be a differ-
ent, more democratic type of colonizer. Writing to General Frank McIn-
tyre, Bureau of Insular Affairs chief, Quezon complained that with the
powers that Governor-General Wood “now possesses or he assumes to
possess, he has practically converted the Legislature into a debating soci-
ety” and that if Washington intended to give him more power, then “they
should be frank and honest enough to do away with the Legislature alto-
gether, and establish here a military regime.” Thus, Quezon felt that “the
only difference between American rule and that of other colonizing pow-
ers is that your rule has some regard for appearance, while the others
bluntly impose their rule.”37
Secretary Weeks’s portrayal of the dispute as legal was belied by Philip-
pine public opinion. It saw the contest, not entirely as one between the
executive and legislative branches, but between American sovereign and
Filipino subjects. The Conley case had caused a sensation in the Islands,
and Manila newspapers avidly covered the progress of the investiga-
tion.38 Editorial cartoons depicted Secretary Laurel as a Don Quixote fig-
ure brandishing a sword labeled “investigation” and struggling to reach
Conley, who stood safely on a giant hand representing Wood or American
power in the Islands. The cartoon’s caption was a dialogue between Con-
ley and Laurel, with Conley taunting Laurel by saying, “I have nothing
to fear for as long as I stand on this hand,” and Laurel replying, “Let’s
see if I can chop that hand down.”39 With tensions running high even
before the Council of State resigned, Wood immediately “sent word to
the American organizations to keep quiet and do nothing which would

tend to create any race feeling”40 upon receiving the letter of resignation.
American newspapers followed suit.41 Equally invested in categorizing
the dispute as a legal one were Filipino political leaders. Two days after
the crisis, Quezon wrote Wood to reassure him that there would be
no trouble and to affirm Filipino loyalty to the United States. He clarified
that the resignation was “not a challenge to the authority of the United
States” but a “peaceful protest against what we believe is a violation of
the rights granted us by the United States and guaranteed by law”42 –
that is, their quarrel was with Wood only, not with the American gov-
ernment or Americans in general. But American and Filipino colonial
officials were aware that tensions simmering beneath had to be managed
delicately.
Getting Government Out of Business

Along with getting the Legislature out of the Insular Bureaucracy,
Governor-General Wood sought to extricate the Insular Government
from private enterprise and reinstate Taft-era economic policy by attract-
ing private American investment to the Islands. As previously dis-
cussed, American and Filipino policymakers both aspired to modernize
the Islands, but adopted rival strategies. While both approaches relied
for their implementation on the Insular Government’s apparatus, they
differed in the nature and degree of state involvement in the economy.
Devised by Republican policymakers during the Taft era, Wood’s meth-
ods preferred that the state facilitate and support, but not compete with,
private enterprise. The Filipino program, however, required the state to
harness national resources and directly own and manage businesses iden-
tified by the Philippine Legislature as vital to national interest. To get
government out of business, Wood planned to sell or contract out the
management of the Insular Government’s virtually bankrupt ventures,
but needed the approval of the Board of Control. This was the three-man
committee created by the Filipino-controlled Legislature to vote shares
in government-owned corporations and carry out the national economic
development program.
By combining executive and legislative functions and Filipino and
American officials, the Board of Control was by no means a unique
institution in this period of Philippine history. Indeed, Chapter 8 demon-
strated that the Board was merely one among several formal modes of
Getting Government Out of Business 207
cooperation43 through which Filipino and American officials formulated

policies, decided appointments, and ran the Insular Government’s day-
to-day business. These hybrid bodies compromised, accommodated, and
mediated two divergent designs for the Philippine government, namely, an
American-style constitutional government, which clearly divided power
among executive, legislative, and judicial branches, and a parliamentary
form favored by Filipinos, which more closely fused the executive and
legislative departments. As institutional compromises, these forums for
collaboration were unstable and could just as easily degenerate into are-
nas of conflict, as the next section shows.
As far as Wood was concerned, the Insular Government’s dismal per-
formance in administration and business had the same underlying cause:
too much Filipino politics. Wood believed that an efficiently and compe-
tently run colonial government best served the Filipino public’s interest,
but the Insular Government could not perform its proper functions, such
as undertaking public works and providing services like public health
and education, if it was too busy (mis)managing companies. He thought
this was obvious and believed Filipino political leaders shared his assess-
ment. Discussing his divestment program with Osmeña after taking office,
Wood wrote: “I assumed that you concur in the opinion that the gov-
ernment should, as soon as possible, and as far as possible, get out of
business and keep out.”44
Like his Taft-era predecessors, Wood believed that Philippine eco-
nomic development was best left to private enterprise. The problem
was that “the American and Philippine Governments in their endeav-
ors to safeguard the people and patrimony of the Philippine Islands from
exploitation have gone too far and have reached the point where little or
no new capital seeks investment in the Islands.” Exacerbating the prob-
lem was that “there is not sufficient capital in the Philippine Islands to
effectively develop our natural resources.” Wood’s solution was to rein-
state Taft-era strategy of doing “all that we can to encourage and attract
foreign capital to the Islands.”45 In addition to privatization, Wood also
intended to relax stringent land laws in order to open up agricultural
lands to large-scale development by American corporations. But while
Wood’s efforts to recapture the Governor-General’s lost constitutional
prerogatives were backed by Washington and anchored in the organic
law, his aversion to government participation in business did not seem
to enjoy the same measure of legal or political support from the home
government.
Congenial Jurisprudence
Having broadly defined the proper scope of government action and
deferred to the political branches’ constitutional prerogatives and to insu-
lar bureaucrats’ administrative expertise, Insular Supreme Court jurispru-
dence as a whole had posed few, if any, significant doctrinal obstacles to
the Insular Government’s developmental strategies and had instead legit-
imated, rather than limited, its far-reaching programs. To be sure, it
accommodated both the Taft era’s policy of promoting direct American
investment and the Osmeña-Harrison’s national economic development
plan via government enterprise.
Nonetheless, there were signs that the Insular Supreme Court would
be receptive to Wood’s crusade. Specifically, two cases decided in the
early 1920s signaled a possible shift in the Court’s attitude from one that
facilitated government intervention to one that scaled back involvement
by using a more rigorous substantive due process approach. The first,
United States v. Ang Tang Ho, was decided in 1922 and invalidated a
statute that granted then Governor-General Harrison the power to fix
prices at which rice would be sold. Originally enacted during World
War I, the law had been justified as an emergency wartime measure.
Justice E. Finley Johnson rejected that rationale because “at all times
the judicial power was in full force and effect,” and in any case the
Constitution’s due process clause “could not be, and was not, suspended
even in times of war,” for this infringement of private property rights
“ought not to be construed to meet the changing winds or emergency
conditions.”46 In the second case, People of the Philippines v. Pomar,47
the Insular Court voided a maternity leave statute and cited as support
Lochner v. New York48 and other substantive due process cases49 that had
similarly rejected ameliorative legislation for interfering with freedom of
contract. Writing for the Philippine Law Review in 1989, Dean Pacifico
Agabin of the University of the Philippines College of Law describes
Ang Tang Ho and Pomar as demonstrating how the Lochner Court had
“become a model to the Philippine judiciary in the protection of property
interests against the assaults of the Filipino legislature.”50 Through such
cases, the classical legal paradigm gained its firmest foothold in Philippine
jurisprudence.
Symptomatic of an emerging judicial assertiveness, the Insular Court’s
endorsement of substantive due process took place alongside its grow-
ing tendency to protect the Philippine judiciary’s powers. Thus, in 1921,
Borromeo v. Mariano construed Section 155 of the Administrative Code,
which read that “nothing herein shall be construed to prevent a judge of
first instance of one district from being appointed to be judge of another

district,” as depriving the Governor-General of the power to “force upon
the judge of one district an appointment to another district against his
will, thereby removing him from his district.” The Court was worried
that such appointments would damage judicial independence in the event
that “a judge who had, by a decision incurred the ill will of an attorney
or official,” and subsequently was “removed from one district, demoted,
and transferred to another district, at possibly a loss of salary, all without
the consent of the judicial officer.”51 Because “the sovereign power has
given life to the judiciary” and only the sovereign power could “take
it away or render it useless,” the Supreme Court concluded that courts
could not, under their duty to the sovereign, “permit themselves to be
subordinated to any person or official to which their creator did not
itself subordinate them.”52 Because of Borromeo, the Insular Legislature
amended the Administrative Code to permit switching judicial appoint-
ments by lottery, which the Court nullified. By replacing decisions that
should rest upon the judgment of the Governor-General and the Senate,
the process transformed judicial appointments into a game of chance and
was tantamount to gambling with the judicial office.53
Washington’s Ambivalence
Doctrinal and institutional trends aside, the Insular Court’s use of sub-
stantive due process to curb the Legislature’s regulatory initiatives seemed
to parallel Wood’s efforts to beat back legislative incursions into the exec-
utive department and to confine it within its constitutional sphere. Both
used law to scale back Filipino initiatives, but it was yet uncertain what
impact these cases would have on the body of jurisprudence that was
still generally congenial to activist government.54 Washington, however,
seemed ambivalent toward Wood’s privatization plan. Indeed, War Secre-
tary Weeks was unconvinced of the necessity of selling off the government
companies and cautioned Wood to proceed slowly. Regarding the PNB,
Weeks noted, “It will take some years to get it in such shape that we could
wisely determine what to do with it.”55 While affirming that Governor-
General Wood had not “exceeded or misused” his powers during the
Cabinet Crisis, Weeks’s statement of support also clarified that the Leg-
islature “has provided for the establishment of a Bank and for certain
investments of a business character,” which “was within the authority
of the Legislature.” Weeks added that Wood had fulfilled his duty when
“in agreement with this Administration, you believed these investments
unwise and have advised the Legislature accordingly” but that it was
nevertheless up to the Legislature to “determine whether these Govern-

ment enterprises are to be carried on or not.” Thus, “so long as the
Legislature indicates through adequate legislative enactments and provi-
sion of necessary means its desire and purpose to carry them on,” then
Wood “should endeavor to have it done efficiently.”56
From the perspective of the home government and Insular Supreme
Court jurisprudence, therefore, there was nothing inherently problem-
atic about a dirigiste colonial government engaging in economic pursuits.
That they took for granted that the Insular Government was empowered
to engage in business is remarkable when contrasted with contemporane-
ous struggles by legal and political elites in the US mainland to delineate
the proper dynamic between the public and private spheres. Because the
Insular Government’s unincorporated territorial status enabled it to oper-
ate relatively unhampered by constitutional limitations, the more relevant
question in the Philippine Islands was not whether the Insular Legisla-
ture could authorize the government to engage in business, but whether
it could do so through the hybrid executive-legislative Board of Control.
This was the issue that the Board of Control cases ultimately settled.
Wood’s Privatization Strategy

Governor-General Wood acknowledged that getting government out of
business was “easy to say, but hard to do under the commitments already
made.”57 To War Secretary Weeks, Wood described the Insular Govern-
ment’s business situation as “a good deal like that of a man who owns
a lot of houses which he cannot lease but which he must keep in reason-
able repair if he wants to sell or lease them.” In the meantime, therefore,
Wood had to keep businesses like the sugar and coconut mills running,
“operating them on a minimum cost basis in order to avoid a total loss
or conditions of deterioration which will prevent their ultimate sale or
lease.”58
Wood required the same austerity of government companies that he did
from the entire administration. Wood focused on the Philippine National
Bank, given its size, importance, and symbiotic connection to the Insular
Government, and his rehabilitation plan for PNB exemplified his overall
approach toward the other companies. He first convened a committee
to examine the Bank’s affairs and then outlined the general policy in a
Board of Control letter addressed to PNB’s General Manager, Mr. E.
W. Wilson. Identified as the Board’s top priority was that PNB “proceed
with all possible vigor consistent with good business methods to liqui-
date its assets in order that it may repay its obligations to the Insular
Government.” The Board also insisted that the Bank not enter into any
new businesses, either directly or indirectly; that it avoid “activities which
will result in the National Bank, operating largely with government funds
and practically without reserves, entering in competition with private par-
ties”; and that PNB close branches “at places where they are not making
an actual profit and at places where commercial banks offer reasonable
banking facilities.” As for the sugar centrals and coconut oil mills, PNB
should only advance money that was “necessary to enable their economi-
cal operation” and to comply with “contracts already made.”59 Although
not mentioned in the policy letter, prosecuting self-dealing bank directors
and officials was also a preeminent concern.60
What made obvious and perfect business sense to Wood proved tricky
to execute, because his policies once again threatened a major source of
political patronage. Not surprisingly, his orders were ignored by both
Filipinos and Americans with a stake in the status quo. PNB Manager
Wilson, for example, continued to make new investments in the sugar
centrals “quite apart from furnishing money to turn out the crops.”61
Later, Wood discovered that Wilson, his brother-in-law, and his son were
“working into the business which is virtually government business,”62 or
engaged in self-dealing, by handling the bank’s foreclosed assets or busi-
ness. Even after Wilson’s departure, however, PNB continued to extend
new loans, both to heavily indebted members of the sugar industry and
to political supporters of Nacionalista legislators.63 Wood thus lamented,
“The long and short of the situation” was that “the Bank is more heavily
[involved in private business] than ever.”64 When Wood demanded that
a bank officer explain why PNB had opened new branches in defiance of
general policy, the officer “wiggled and squirmed and tried to make out
that the agencies were not branches,” but “finally confessed that they did
a good deal of regular banking business.”65
Wood tried to replace intransigent directors and managers. In a “long
session” with PNB directors, Wood stated that he believed that PNB
“must have either an American Manager or an American President – an
American to fill one or the other of the two positions.”66 But he could
not appoint the personnel he wanted, either because they were unwilling
to serve67 or because Wood allies like Insular Auditor Benjamin Wright
were unacceptable to Quezon and Roxas, the other two Board of Control
members, as well as to PNB’s Filipino directors.68
By far, Wood encountered the greatest resistance when he tried to sell
or lease the Insular Government’s businesses. Throughout his term, Wood
negotiated with various American firms for operating contracts for the
Manila Railroad69 as well as for the sale of properties like the foreclosed
sugar centrals,70 the cement plant owned by the National Development
Company’s subsidiary,71 and the Manila Hotel.72 But while fellow Board
members Quezon and Roxas seemed to agree with Wood’s program in
principle, their actions betrayed their true position. For more than five
years, the Filipino tandem adopted a passive-aggressive approach: while
appearing to go along, they postponed, delayed, canceled, or simply
refused to attend meetings; imposed new conditions when their initial
demands were met; and raised new concerns just as the Board was about
to vote on a deal. Indeed, they had done everything short of approving
(or rejecting) the transactions outright.
The deal that came closest to consummation was the sale of the cement
plant owned and operated by the Cebu Portland Cement Company, a sub-
sidiary of the National Development Company. After the Cabinet Crisis,
the Board of Control had agreed on the terms by which the buyer would
exercise his option. Quezon, however, urgently requested deferring the
signing of the contract until after elections were held, because “the trans-
fer of the property at this time would bring on a good deal of discussion
during an already overheated pre-election contest.” After the elections,
Quezon vacillated again, saying “that he feared that if he signed it, in view
of an article in the Bulletin charging him with friendliness to the Amer-
icans, he would be subjected to severe criticism.” Exasperated, Wood
replied that it was “not a question of what you would be subjected to; it
was a question of what we are going to do with our promise.” Besides, he
felt Quezon “need not to have any fear,” for his skirmishing with Wood
absolved him “of the charge of being too friendly to Americans.” When
Wood reminded them that the contract was “a good one and protects
everybody’s interests and is in the public’s interest and because it estab-
lishes on a sound basis a difficult industry,” that they had agreed to its
conditions and the terms were unchanged, and that they had given their
word that they would sign the contract after the elections, Quezon and
Roxas invoked the “new political condition [that] has arisen,” namely,
the Cabinet Crisis. Wood concluded “in other words, the promise of the
President of the Senate and the Speaker of the House mean nothing unless
politically expedient.” Looking “very much ashamed and downcast,”
both asked for time “to get together with their Senators and supporters
and talk things over and see me at four o’clock.” But when the appointed
time came, Wood found “only myself in attendance” and a letter from
Quezon and Roxas stating that they wanted to defer taking action on the
cement contract yet again.73
Wood perhaps failed to appreciate that these businesses represented

both Filipino control over government and the economy and a source of
Filipino patronage. Beyond profit, beyond efficiency, what mattered most
to Filipino leaders was that they were and would remain Filipino. In a
speech denouncing Wood, Quezon uttered the famous quote claiming to
prefer a government run like hell by Filipinos to one run like heaven by
Americans. Thus, during the Harrison administration, PNB Directors dis-
approved a loan that would have enabled an American to buy the share
of another American in a sugar plantation that the Insular Legislature
was about to acquire.74 With respect to the cement plant, the Board of
Control stated that while “it would be desirable to dispose of the plant
under conditions which would protect public and private interests and
insure the continuance of the industry under terms which would be favor-
able to the government and insular users of cement”; nonetheless, “the
sale should not be made to foreigners but . . . to Americans and Filipinos
or a combination of American and Filipino capitalists.”75 Hence, for
Filipino legislative leaders, what was in the public interest was to keep
the properties Filipino-owned. This ultimately meant, first, that the com-
panies would remain government-owned due to private Filipino capital’s
inability to buy them, and, second, that it was imperative for Filipinos to
stay in control of the Insular Government to keep their patrimony intact
on all levels.
For Wood, it did not suffice for the companies to be owned by
Filipinos for the latter’s interests to be served. To him, what truly served
the public’s best interest was for the companies to be managed in its
behalf following sound business principles by those best equipped to do
so. In offering sovereignty’s benefits in exchange for sovereignty’s title,
Wood tried to execute a modern move of detaching the art of government
from Filipino sovereignty, while Filipinos clung to an older conception
of governmentality as an exercise of popular sovereignty. When Wood
could not get his way especially after the Cabinet Crisis, he leaked to the
press information regarding Filipino mishandling of the national finances
and the PNB’s condition. Attempting to win the Filipino people’s support,
Wood noted, “The Bank was brought to the brink of ruin by irregularities
and mismanagement years ago which have been carefully kept from the
knowledge of the people.” But since he took the helm of office, “the Bank
is in far better condition today than at any time in the past four years”
because “it is being well and carefully managed,” with every effort made
“to keep its activities on sound business lines and to eliminate political
and improper influences in the handling of its affairs and resources –
resources which . . . come from the taxes paid by the people of the Philip-
pine Islands.”76 But Wood’s direct appeals proved unavailing, as Quezon
and Roxas continued to thwart his divestment plan.
Legal Skirmishing
As relations soured, Wood directly attacked what he considered constitu-
tionally anomalous arrangements. Among the most significant were the
Commission on Independence, described in the next section, and its gen-
erous Independence Fund. In retaliation, Quezon and the Nacionalistas
deployed legislative weapons, notably, the power to summon cabinet sec-
retaries for questioning and to confirm executive appointments. Reaching
the Philippine Supreme Court through Abueva v. Wood and Alejandrino
v. Quezon, these two contests prefigured the strategies and arguments in
the Board of Control cases.
Abueva v. Wood: Attacking Legislatively Created Bodies

Created by the Insular Legislature at the end of World War I “for the
purpose of studying all matters related to the negotiation and organi-
zation of the independence of the Philippines,”77 the Commission on
Independence was composed of 25 members, who included legislators,
other government officials, and private citizens, and was financed by a
continuing annual appropriations of PhP1,000,000 “out of any funds in
the insular treasury not otherwise appropriated to defray the expenses
of the independence commission.”78 Wood objected to these appropri-
ations on three grounds: first, he felt that the continuing nature of the
appropriations circumvented his veto power; second, he resented the use
of tax money to oppose American policies; and third, he objected to the
way the Nacionalistas treated the appropriation like a slush fund.79 To
control the use of the Independence Fund, Wood initiated an audit and
publicized its expenditures, suspended payments therefrom, and vetoed
and challenged the constitutionality of its regular appropriations.
Two weeks after the Cabinet Crisis, the Governor-General invited
Insular Auditor Benjamin Wright’s “attention to the necessity of making
a careful audit of all expenditures made from what is commonly known
as the ‘Independence Fund.’” Because its funds were “in every sense pub-
lic money,” Wood felt that “its disbursement should be audited with the
same care as other public funds, and public vouchers giving the purpose
and details of the expenditures should be required.”80 By taking his case
directly to the Filipino public, Wood contested the Nacionalistas’ claim
Legal Skirmishing 215
that mere electoral victory constituted them agents of the Filipino people.
Rather, to speak for the Filipino people, they had to serve this public’s
interests. Wood thus exposed Nacionalista profligacy to sever their link
to the Filipino constituency, redefine what protecting the public inter-
est meant, and style himself as the Filipino public’s true advocate and
guardian. Moreover, Wood encouraged the opposition Democrata Party
to challenge Nacionalista hegemony by proposing that they also audit
the Independence Commission. Writing to Democrata Senator Vicente
Sotto, Wood explained that because Democrata legislators “are mem-
bers of this Commission” and “the Commission keeps in its own files
a duplicate of all vouchers,” then he suggested, “that you first make
application to the Chairman of Independence for access to its records,
confident that this information will not be denied to members of the
Commission.”81
But the Nacionalista-controlled Commission did prevent Democrata
members from examining its records, prompting the latter to initiate a
mandamus petition with the Insular Supreme Court to compel not just the
Independence Commission, but also the Insular Auditor and Governor-
General Wood, to exhibit the Commission’s vouchers. Strikingly, Justice
Johnson’s opinion in Abueva v. Wood contrasted the Attorney General’s
“extensive memorandum” with the Democrata petitioners’ failure “to
present a memorandum” at all. Ill-prepared, the Democrata move was
probably ill-advised. Because the Insular Court had consistently regarded
its co-equal branches as being of “equal dignity” and “within their respec-
tive spheres of action, equally independent,” Justice Johnson predictably
declared the Court without jurisdiction to dictate to either the Governor-
General or the Commission, as agents of the Legislature, how to perform
their constitutionally assigned functions. Similarly, the Supreme Court
declined to assume jurisdiction over the Insular Auditor and adhered to
Jones Law provisions declaring the Auditor’s decisions final and con-
clusive on the Government’s executive branches, unappealable to local
courts, and reviewable only by the Governor-General and the Secretary
of War.82
Wood was not content to publicize the Commission’s spending. In
early 1924, he ordered Insular Auditor Wright to suspend payments
to the Commission, which had gone to Washington after the Cabinet
Crisis in part to protest Wood.83 Believing that the Commission ought not
to be humiliated, the Secretary of War recommended that Wood release
funds for the Mission “to meet outstanding accounts and for necessary
expenses to close out its work and return to Manila.”84 Complaining to
both Bureau of Insular Affairs Chief McIntyre and War Secretary Weeks
about Wood and Wright, Quezon called Wright an “evil influence” who
“has availed himself of every opportunity to hit at the Filipino officials,
especially the members of the Legislature with the evident purpose of
depriving them of the privileges conferred upon them by law and hamper-
ing them in the discharge of their duties.”85 Because Wright had become
such a valuable ally in Wood’s campaign to curb Filipino autonomy,
Filipino leaders challenged his office’s prerogatives and secured passing a
bill allowing suits against the Insular Auditor’s adverse decisions, which
Wood vetoed. Philippine businesses sued the Auditor in local courts, but
also lost.86
Finally, Wood considered emasculating the Independence Fund, either
by vetoing all continuing appropriations or by challenging the constitu-
tionality of the provision mandating Commission membership for legisla-
tors. An opinion from the US Army’s Judge Advocate General persuaded
him to abandon the first option, but Washington encouraged him to
pursue the second one.87 The argument that legislators could not simul-
taneously pass a law and participate in its implementation supplied the
theory that Wood and the Insular Supreme Court used to invalidate the
Board of Control.
Alejandrino v. Quezon: Flexing Legislative Muscles

To harass Wood’s Secretaries, the Legislature used its power to haul
Department Secretaries for questioning before both houses, but the
Governor-General decided he could not permit Felipe Agoncillo, who
had replaced Laurel as Secretary of Interior, “to present himself for the
purpose of being grilled and questioned concerning his official actions for
which he is responsible to me and not to the Legislature.”88
They next attempted to thwart Wood from appointing legislative rep-
resentatives from Mindanao and the Mountain Province. Administered
by the military during the Taft era, these non-Christian provinces shifted
from military to civilian – and therefore American to Filipino – rule when
they were subsumed under the Filipino-run Department of Interior dur-
ing the Harrison years. Governed by civil authorities, these regions did
not enjoy the full privileges of their Hispanicized Christian local gov-
ernment counterparts, for their inhabitants did not elect their governors,
two senators, and nine representatives. Rather, these regional represen-
tatives were appointed by the Governor-General and held office until
removed by him. When the Senate rejected his American nominees as gov-
ernors in the non-Christian provinces, Wood interpreted this as a broad
Legal Skirmishing 217
intimation “that no more Americans shall be confirmed, that they propose

to go on with Filipinization.”89 The Senate also used its power to disci-
pline its members to block representatives from non-Christian provinces
from taking their seats, thus doing an end run around the Governor-
General’s appointment and removal powers. After the Cabinet Crisis,
Wood appointed Jose Alejandrino, a former Revolutionary general, to
represent one of these areas. Purportedly due to Alejandrino’s “disor-
derly conduct,” the Senate suspended the senator and deprived him of all
his privileges and emoluments for one year. Wood equated this punish-
ment with “practically an expulsion from the Senate and would amount
to removal.”90 Senator Alejandrino filed a petition for mandamus and
injunction with the Supreme Court to annul his suspension and compel
the Senate to reinstate him.
Although designated Alejandrino v. Quezon after the two senator dis-
putants, the case may well have been entitled Wood v. Quezon, because
the battle was in truth between these two antagonists. Naturally, Wood
was keenly interested in the outcome – perhaps inordinately so – and
monitored the Supreme Court deliberations through Justice Johnson.
Justice Johnson reported to the Governor-General that Justice Malcolm
had been “playing with the Filipinos as usual” and pronounced himself
“much surprised at his action,” because Wood had mentioned speaking
with Malcolm just a few days earlier. Of the seven justices present at the
deliberations, Johnson noted that six believed “the action of the Senate
was null and void,” but the justices unanimously agreed that the Court
was powerless to grant relief to Alejandrino, prompting Justice Mal-
colm to move for dismissal. Wood, however, demanded nothing less than
the Court’s categorical declaration that the Senate resolution suspending
Alejandrino was illegal. Wood had in fact told Malcolm that if the Court
“declared the action of the Senate illegal the further action could be
left to me; that there would be no need to couple their decision with
a request for reseating but let that ride until the necessity for reseating
arose.”91
Under separation of powers doctrine, such close contact between
the executive and the judiciary undermined the judicial independence
essential to the system’s integrity. However, this crisis seemed to con-
vince Wood and Johnson that they had to transcend their executive and
judicial roles and stick together as Americans for the survival of the
American colonial order. Wood was afraid that the Court’s decision
would mean “that the Senate or the House can practically nullify the
Governor-General’s power of appointment of two Senators and seven
Representatives by suspending them for long periods on any trivial cause,

as in this case.” Wood regarded the Senate’s strategy as “carefully planned
to irritate Alejandrino to the point of his defending himself, which he
finally did.” To Wood, the Senate’s stunt was “another indication of their
complete unfitness for self-government and . . . of what would happen if
they were unsupervised.”92
Wood failed to obtain his desired outcome. Indeed, he understood
from Justice Johnson “that Malcolm had done what he could to swing
the Court against providing a remedy and relief.”93 Speaking through
Justice Malcolm, the Insular Supreme Court pronounced itself without
jurisdiction to reinstate Alejandrino:
No court has ever held and we apprehend no court will ever hold that it possesses
the power to direct the Chief Executive or the Legislature or a branch thereof
to take any particular action. If a court should ever be so rash as to thus trench
on the domain of either of the other departments, it will be the end of popular
government as we know it in democracies.94
Moreover, the Court did not declare but only hinted that the Senate’s
suspension order was unconstitutional. Comparing the powers of the
Governor-General and the Senate under the Jones Law, the Court found
that the Governor-General could appoint and remove legislators from
the non-Christian provinces, but that the Senate had exclusive author-
ity to punish its members short of expelling them. The problem was
that “suspension,” while a mode of punishment, was “equivalent to
qualified expulsion or removal.”95 Despite conceding that the Senate’s
power to discipline did not contemplate suspending Alejandrino for one
year, the Court nonetheless ruled that it was powerless to issue the writ,
“for the all-conclusive reason that Supreme Court does not possess the
power of coercion to make the Philippine Senate take any particular
action.”96 Reviewing the decision of the Insular Supreme Court on cer-
tiorari, Chief Justice William Howard Taft dismissed the petition for
mootness, because “the period of suspension fixed in the resolution has
expired, and . . . Alejandrino is now exercising his functions as a member
of the Senate.”97
Conclusion
When Wood sought to recover the Governor-General’s lost prerogatives,
he pushed colonial collaboration past its breaking point. Henceforth,
colonial political dealings were openly antagonistic and required formal
Conclusion 219
legal resolution. But both the Abueva and Alejandrino cases reveal the
judiciary’s reluctance to adjudicate essentially political disputes, with the
Abueva Court declining to assume jurisdiction at all and the Insular
Court and US Supreme Court in Alejandrino shying away from void-
ing Senate action. In Alejandrino, it seems that Taft, as both archi-
tect of American colonial policy in the Islands and author of the US
Supreme Court opinion, still hoped to salvage the cooperation that once
existed between Americans and Filipinos in the Insular Government. If
the Court had taken Wood’s side, then there would be no turning back.
American exceptional colonialism would be as bluntly coercive as tradi-
tional imperialism had been, with the only difference being, as Quezon
noted, that Americans cared more about appearances. If Quezon was
right, then the American experiment in colonial democracy would be a
failure and exposed as incompatible with the American democratic tra-
dition. Indeed, when Quezon explained to War Secretary Weeks why
Filipino leaders had not yet challenged Wood in court even though they
thought his actions illegal, he expressed skepticism that “the Supreme
Court would have the courage to decide a question against the Gover-
nor, especially when it is known that he does not hesitate to discuss at
least with some members of the court matters that are before a court for
judicial consideration.”98 For the moment, the Insular and US Supreme
Courts were able to avoid taking a clear position in the Alejandrino case,
but they would be unable to do so when the Board of Control cases came
up for decision. It is to this climactic battle that the next chapter turns.
10
Colonial Conflict, Constitutional Categories
Constitutional Imperialism and the

Board of Control Cases
Just when the Government of the Philippine Islands was about to sell
one of its cement plants and launch Governor-General Leonard Wood’s
privatization scheme in earnest, Speaker Manuel Roxas declined to attest
that Board of Control members “were unanimously in favor” of the sale.
Hearing that Roxas had hedged once again, a frustrated Wood and his
trusted advisors began toying with the notion that the Board of Control,
as a joint executive-legislative body tasked with managing government
corporations, was illegal and could be abolished altogether.1 Having
consulted Washington about eliminating the Commission on Indepen-
dence, Wood sought legal advice in early 1926 from the Judge Advocate
General and the US Attorney General regarding the Board’s constitu-
tionality under the Jones Law, but bided his time upon receiving their
opinions. But when Roxas stalled yet again come September by asking
that a formal contract first be drawn up before the Board could vote
to sell the government’s cement plant, Wood’s patience finally ran out.
Cynically, he predicted that “for one reason or the other they will hold
up the sale,” especially because “the whole operation of the Board has
been very unsatisfactory”2 in the last six or eight months.
But Wood had been maneuvering precisely to break such a stalemate.
Armed with official opinions from the home government, Wood issued
in November 1926 Executive Order No. 37 that stated categorically that
“the provisions of the statutes passed by the Philippine Legislature creat-
ing a ‘board of control’ or ‘committee’ and enumerating the duties and
powers thereof with respect to certain corporations in which the insu-
lar government is the owner of stock, are nullities.” Consequently, this
three-man body’s powers and duties “shall, from and after this date,
220
The Board of Control Cases 221
be exercised solely by the Governor-General pursuant to the executive

power vested in him by the organic act.”3 Contending that the Board’s
existence was an operative fact, Roxas and fellow Board member Manuel
L. Quezon refused to resign and threatened to take Wood to court.4
Their refusal set the stage for the so-called “Board of Control cases,”
which were “undoubtedly the most sensational to be brought before
the courts during the entire history of the Government of the Philippine
Islands.”5
Beyond the controversy they sparked, the Board of Control cases are
significant as a metaphor for American colonial rule’s democratic and
developmental objectives for the Islands. American colonialism had com-
bined executive-legislative and Filipino-American composition in a sym-
bolic theater of cooperation, contention, and compromise. For Filipinos
and Americans who had performed in similar roles within the govern-
ment, the Board of Control was by no means an alien platform. More-
over, its mandate to develop the Philippine economy through government
enterprise executed the Filipino strategy for colonial development. But
while the Board of Control story was only one of numerous American-
Filipino/executive-legislative contests fought throughout the colonial era,
the cases were a watershed, for they represented the first time that both
sides directly faced each other in a court of law. The Board of Con-
trol stood for all previous arrangements that Filipino leaders had devised
to reconfigure the American colonial constitutional structure. They also
carried implications for the Filipino development program implemented
through these institutional innovations. Thus, what the Philippine and
US Supreme Courts said of the Board of Control extended to all the other
precarious institutional concessions wrested by Filipino leaders through-
out the colonial period. At stake in the immediate future was whether
the strategy of increasing Filipino control by modifying the Insular Gov-
ernment’s constitution from within would be viable. Ultimately at stake,
however, were two particular visions of the Philippine state’s character,
direction, and relationship to the United States.
The Board of Control Cases

Competing for control over the companies, Wood and the Board of Con-
trol fielded two slates of directors at the elections to the Board of Direc-
tors of the Philippine National Bank and the National Coal Company.
But when Wood’s directors were not recognized during the sharehold-
ers’ meetings, they filed two quo warranto petitions questioning the right
222 Colonial Conflict, Constitutional Categories
of the Quezon-Roxas directors to hold office. In both cases, the Insu-

lar Supreme Court upheld Governor-General Wood’s petitions by a vote
of six to three. The five American justices, along with Justice Norberto
Romualdez, voted with the majority, and the other three Filipino Justices,
namely, Ramon Avanceña, Ignacio Villamor, and Antonio Villa-real, dis-
sented. On appeal, the US Supreme Court consolidated the cases and
affirmed the Philippine decisions by a vote of seven to two.
Nominally at issue was who was entitled to vote the Insular Govern-
ment’s shares in various government corporations. Under actual attack
was the “entangling net” surrounding the Governor-General – that is, all
the Harrison-era arrangements created to shifting administrative control
to the Insular Legislature. Thus, the Board of Control cases captured in
miniature the entire history of a colonial struggle that had been routed
toward American constitutional law categories and waged in the language
of a shared American democratic and constitutional tradition.
Government Corporations: Public or Private?

Invoking direct election to equate themselves with the Filipino people,
the Insular Legislature regarded the government companies that it char-
tered as public/Filipino corporations and the Board of Control as ensuring
Filipino management. But while identifying with the “public” justified leg-
islative participation in the Insular Government’s day-to-day operations,
this strategy backfired against the Legislature before the courts. Indeed,
the public category afforded Governor-General Wood his strongest legal
arguments.
Hewing close to the opinions prepared by the US Attorney General
and Judge Advocate General, the Insular Government argued that Board
of Control membership, which involved managing government corpora-
tions through voting its shares, was a public or civil office. As a legal
entity whose incidents and duties were defined by law and in which the
exercise of discretion was necessary to perform its public function of car-
rying out the national economic development plan, the Board possessed
the essential elements of a public office under both American jurispru-
dence and Philippine statutes.6 Classifying Board membership as a public
office allowed Wood’s lawyers to vest appointment authority to its seats
exclusively in the Governor-General’s appointment powers, whether by
organic act texts or by an essentialist understanding of the nature of exec-
utive power. Consequently, corporate charter provisions designating the
Speaker and Senate President as ex-officio Board members usurped an
exclusive executive function. Not only was Board membership a public
office, Wood’s lawyers likewise categorized the government corporations

as public property whose management was primarily an executive func-
tion.
Writing for the Insular Supreme Court majority, Justice George A.
Malcolm accepted this strong formulation in favor of executive author-
ity. Like the Insular Government’s lawyers, Malcolm designated both
the Board and government corporations as public instrumentalities that
formed part of the government’s administrative structure and performed
executive functions. He then traced the right to choose their personnel
to the Governor-General’s appointment powers. He accomplished this
by first locating these powers in Philippine organic acts and in state and
federal history. He then analogized between appointment powers and
the performance of duties appurtenant to voting committee member-
ship, characterizing the latter as “at the very least, an executive func-
tion of the Government” assigned by the Jones Law to the Governor-
General.7
That government corporations like the National Coal Company had
separate legal personalities struck Justice Malcolm as insufficient “to
disconnect the Company or the stock which the Government owns
in it from the Government and executive control.”8 Not only were
public funds appropriated to create the corporation and purchase
shares, but the Insular Government remained its majority stockholder –
“evidently in order to insure proper governmental supervision and con-
trol, and thus to place the Government in a position to render all possible
encouragement, assistance and help in the prosecution and furtherance
of the company’s business.”9 Because the shares were government prop-
erty, then “just as surely as the duty of caring for government property is
neither judicial nor legislative in character it is surely executive.”10 Con-
sequently, “the duty to look after government agencies and government
property belongs to the executive department . . . and the placing of mem-
bers of the Philippine Legislature on the voting committee constitutes an
invasion by the Legislative Department of the privileges of the Executive
Department.”11
To prevent Wood from monopolizing authority over the Board and
government corporations, lawyers for the Quezon-Roxas directors classi-
fied these bodies as private. They argued that the government’s majority
stake in separate corporate entities did not transform these companies
into public agencies or instrumentalities, even if they had been “created
and established for the purpose of developing the coal industry in the
Philippine Islands, in harmony with the general plan of the Government
to encourage the development of the natural resources of the country.”12

The Board served as the government’s proxy and, as such, neither per-
formed any sovereign functions nor qualified as a public office.13
In denying the public character of the Board and government com-
panies, lawyers for the Quezon-Roxas directors contradicted in a legal
forum how Filipino legislative leaders had portrayed them in the political
arena. For while these bodies’ public classification lent political leverage
to the Insular Legislature, it triggered unfavorable constitutional conse-
quences, for the law did not equate popular representation, which only
the Legislature enjoyed, with sovereignty in unincorporated territories,
which belonged to Congress.
Consequently, Justice Malcolm’s Springer majority opinion described
the entire Insular Government as an “agency” of the US Congress. The
powers that Congress, as principal, “has seen fit to entrust to the Philip-
pine Government, the agent, are distributed among three coordinate
departments, the executive, the legislative, and the judicial.” Thus, gov-
ernment’s three departments enjoyed equal yet different claims on the
sovereign, and the Legislature’s status as the only government branch
directly elected by a non-sovereign Filipino people conferred on it no
stronger right to represent the real sovereign than its co-equal branches.
Thus, the Legislature’s identification with the Filipino people carried
moral, but not legal, force and did not confer an exclusive right to define
the Filipino public’s best interests. Just as sovereignty was unmoored
from a popular basis in the unincorporated territory, so could the con-
struction of the public interest be severed from the people and imbued
by the American Governor-General with Progressive standards of profes-
sionalism, efficiency, and expertise.
Fields of Black and White

Decisive for both the Insular Supreme Court and the US Supreme Court
was not which branch was more representative of the Filipino people, but
what Congress had assigned each branch to do for and in the name of
the people, who remained an important constituency in American colo-
nial democracy. While the Jones Law contained “no general distributing
clause,” Justice Malcolm noted that the separation of powers principle is
“clearly deducible from the grant of powers” that assigned to the Philip-
pine Legislature the power to make laws, to the Governor-General the
power to execute laws, and to the Supreme Court the power to construe
laws. Moreover, this principle was incorporated in the Islands’ Admin-
istrative Code and has “time and again been approvingly enforced by
this court.”14 The organic division of powers implied that departments

were prohibited from exercising powers properly belonging to another,
and within this scheme, appointment powers were primarily conferred
on the executive. Malcolm argued, however, that even if the Legislature
could make appointments in limited instances, its members were still
generally barred from participating in the execution of the laws that they
enacted.
Justice George Sutherland’s majority opinion for the US Supreme Court
likewise stressed the centrality of Congress’s allocation of power among
three separate departments through the organic acts. Although the Jones
Law did not expressly provide that “the legislative, executive and judicial
powers of the government shall be forever separate and distinct from each
other,” this separation of powers and “the consequent exclusive character
of the powers conferred upon each of the three departments is basic and
vital – not merely a matter of governmental mechanism” and are “implicit
in the Philippine Organic Act.”15 Consequently, Justice Sutherland, like
Justice Malcolm, concluded that the Philippine Legislature only had “the
authority to make laws, but not to enforce them or appoint the agents
charged with the duty of such enforcement,” because “the latter are
executive functions.”16
The dissenting Filipino justices in the Philippine case did not confine
legislative power to law-making. Liberally construing the Jones Law, they
derived the Legislature’s authority over the companies from its residuum
powers. To argue that the Legislature could deal with the properties
while conceding the non-legislative nature of Board of Control member-
ship, Justices Avanceña, Villamor, and Villareal adopted the Quezon-
Roxas directors’ argument categorizing the companies as private and the
Board as the Government’s proxy, thereby removing these bodies from
the Governor-General’s exclusive ambit. If the corporations were pri-
vate, then managing them was not an executive prerogative, at least not
solely.
Congress implied the existence of residuum powers by reserving “to
itself the power and authority to annul the laws enacted by the Philip-
pine Legislature.”17 Had Congress intended to limit its powers to the
Jones Law’s enumeration and to those purely legislative in character,
no reservation would have been necessary “because all laws passed by
the Philippine Legislature which are within its powers will of necessity be
valid, and all laws in excess of its powers will be null and void, and the
courts will so declare them.”18 In the United States, the residuum powers
argument often appears in the context of the Tenth Amendment, which
reserves to states the power to regulate areas not specifically assigned by

the US Constitution to the US Congress. The Jones Law reservation oper-
ated analogously to the Tenth Amendment, because “it is only when a
residuum of power is left with a legislature which does not owe its powers
to the people or to a constitution made by the people, as the Philippine
Legislature, that such a reservation becomes necessary.” For absent such
reservation, the Legislature “may exercise a power which the Congress
had not intended it should exercise, and which the latter may be power-
less to correct, giving room to doubt with no other means of solving them
except by judicial decision, which may be precisely the contrary of what
the Congress may have intended.”19
Granting that the Philippine Legislature possessed residuum powers,
Justice Malcolm’s opinion qualified that they encompassed only legisla-
tive acts. Quoting Judge Thomas Cooley’s Constitutional Limitations,
Malcolm defined “legislative power” as “the authority, under the con-
stitution, to make laws, and to alter and repeal them.” As a corollary,
the legislature “cannot exercise powers which are essentially executive or
judicial” and thus “cannot make a law and then take part in its execu-
tion.”20 Participation by the Senate president and speaker in the Board
of Control was tantamount to the Legislature engaging in law-execution
rather than law-making.
The historian Daniel T. Rodgers has described Constitutional Lim-
itations as “unabashedly designed to facilitate constitutional challenge
to the legislature’s will” by interposing the courts “as never before into
the eye of day-to-day politics” to delineate what popular representatives
could properly do.21 By citing Cooley, Malcolm imported the Ameri-
can political tradition’s anti-legislative bias. This deep-seated Whiggish
fear of wealth redistribution by legislative majorities was conjured when
the Insular Legislature, like state governments in the early Republic, had
been permitted “to emasculate powers properly belonging to the executive
department,” rendering the executive still responsible for “administering
the government without the means of doing so.”22 This history created
a built-in disadvantage for the Legislature that ultimately undermined
efforts to generously construe its powers in order to realize Congress’s
intent to grant greater autonomy to the Islands. Cited by Justice
Malcolm and Justice E. Finley Johnson,23 this powerful reference to the
Whiggish history of American state legislatures not only resonated loudly
with the ongoing Philippine saga but, more significantly, framed the dis-
pute in terms of America’s long-standing struggle to curb the leveling
tendencies of tyrannical legislative majorities, instantly legitimizing
Governor-General Wood’s efforts to retrieve executive prerogatives from

the legislative vortex. Pointedly, Justice Malcolm resolved, “[t]he mis-
takes of State governments need not be repeated here.”24 Overlooked
by this analogy, however, was the great disparity in power possessed by
American state legislatures compared to the Insular Legislature within
their respective political contexts.
Perhaps to avoid being preempted by this anti-legislative bias, the
Quezon-Roxas directors moved away from the residuum powers theory
before the US Supreme Court and instead adopted an expansive interpre-
tation of the Insular Legislature’s general legislative powers. Justifying
this stronger formulation of legislative power was Congress’s commit-
ment to prepare the Filipinos for independence through the only branch
under their sole control. Thus, the Quezon-Roxas directors abandoned
the common constitutional tradition’s Whiggish past, which they did
not help create but yet threatened to preclude them, and wagered on its
fluid present, whose content and direction they participated in shaping.
Reiterating in explicitly legal language arguments previously rehearsed
by Maximo Kalaw and Jorge Bocobo to summon the “spirit of the Jones
Law,” the Quezon-Roxas directors claimed that the Legislature’s general
legislative power authorized it to charter private companies and to pro-
vide for their care by, for example, choosing who would vote their shares
or even by voting the shares themselves. Yet even if the corporations were
public and the Board of Control were a public office, the Quezon-Roxas
directors argued that the Jones Law had since limited the Governor-
General’s appointment prerogatives to only three offices and shifted to
the Legislature the power to appoint the rest of the offices.25 Neither did
the Jones Law disqualify Senate President Quezon and Speaker Roxas
from sitting on the Board of Control, because the body was created prior
to the current terms of office of these two legislative leaders.26
The US Supreme Court majority largely ignored this broad construc-
tion of the Insular Legislature’s general legislative power, but Justice
Oliver Wendell Holmes took up the residuum powers argument proposed
by the dissenting Insular Supreme Court justices. While Justice Malcolm
viewed the Board of Control’s functions as executive for being neither
legislative nor judicial, Justice Holmes disagreed and instead noted that
“they are plainly no part of the executive functions of the Government
but rather fall into the indiscriminate residue of matters within legislative
control.” Adopting the analogy drawn by the Quezon-Roxas directors
between the Board of Control and the Smithsonian Institution’s Board of
Regents on which sat members of both US congressional houses, Holmes
thought it “lamentable even to hint a doubt as to the legitimacy of the

action of Congress in establishing the Smithsonian as it did” and saw “no
sufficient reason for denying the Philippine legislature a similar power.”27
The Board of Control cases also furnished the occasion for Justice
Holmes to pronounce his immortal indictment of a High Court trapped
in the rigid formalism of legal classicism. With an equally progressive
Justice Louis Brandeis concurring, Justice Holmes wrote:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other . . . It does not seem to need
argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that
the Constitution requires.28
Justice Holmes’s position reflected his belief in the legislature’s centrality

in a democratic society and his skepticism regarding the right of unelected
judges to substitute their policy preferences, which masqueraded as law,
for those of elected legislators. His was decidedly a modern notion that
had begun to challenge, but had not yet eroded, the existing paradigm.
For the moment, fluid conceptions conflicted with prevailing formalist
and essentialist understandings of the departmental categories.
Based primarily on this dominant essentialist understanding of legisla-
tive power, the Philippine and US Supreme Court majorities invalidated
the Board of Control. Concurring with the Philippine majority, Justice
Johnson argued that since the Court had resolved that the Legislature
had no authority to take part in the Board, it was immaterial to decide
whether the corporations were public or private: “the fact that the Leg-
islature enacted the law and at the same time provided that, through the
President and Speaker, it (the Legislature) should assist in the execution
of the same, is sufficient to nullify the provision.”29
Justice Sutherland’s US Supreme Court majority opinion charted a
middle course. Instead of classifying the Board of Control and the corpo-
rations as public, he focused instead on the nature of the owner, noting
that when “property is owned by the government,” then “the govern-
ment in dealing with it whether in its quasi-sovereign or its proprietary
capacity nevertheless acts in its governmental capacity.”30 There being
“nothing in the Organic Act, or in the nature of the legislative power
conferred by it, to suggest that the legislature in acting in respect of
the proprietary rights of the government may disregard the limitation
that it must exercise legislative and not executive functions,” he con-

cluded that the Philippine Legislature must deal with the property of the
government by making rules, and not by executing them.” Thus, while
Board of Control members were not public officers in the strict sense,
Justice Sutherland regarded them as “public agents at least, charged
with the exercise of executive functions,”31 since the “appointment of
managers (in this instance corporate directors) of property or a busi-
ness is essentially an executive act.”32 Consequently, a legislature that
was deprived of “the power of appointment, unless expressly granted or
incidental to its powers,” cannot “engraft executive duties upon a leg-
islative office, since that would be to usurp the power of appointment by
indirection.”33
Finally, both Justices Sutherland and Johnson grounded the Governor-
General’s right to vote government shares to his office’s supreme executive
power and power of general supervision and control over all government
departments and bureaus under the Jones Law and to his constitutional
duty to faithfully execute the Islands’ laws, because these were “grants
comprehensive enough to include the powers attempted to be exercised by
the legislature by the provisions of law now under review.”34 Curiously,
both opinions resorted to these organic act provisions last. In fact, Justice
McReynolds’ concurring opinion in the US Supreme Court decision con-
strued these constitutional provisions as sufficient in and of themselves
to dispose of the case, saying that “the majority goes much beyond the
necessities of the case.”35
Interestingly, Justice Malcolm had opted not to rely on these general
grants of executive power under the Jones Law, but insisted instead on
deriving the Governor-General’s right from his more explicit appointment
powers. In his view, the Jones Law did not grant the Governor-General
any prerogative powers. Rather, this officer’s “powers are so clearly and
distinctly stated that there ought to be no doubt as to what they are.”
Thus, like the legislature, the judiciary, and the most inconspicuous gov-
ernment employee, the Governor-General “must find warrant for his
every act in the law, because “at this stage of political development in the
Philippines, no vague residuum of power should be left to lurk in any of
the provisions of the Organic Law.”36
The Relative Autonomy of Law

Philippine historian Alfred W. McCoy found Justice Malcolm’s strict
formalism uncharacteristic of the “liberal tendency” that Filipino legal
scholars have detected in his jurisprudence. Because Malcolm’s opinions
tended “to escape from the rigid confines of statute and case books, from
the idolatrous reverence for precedents,” he is considered a “symbol of
progressive judicial thought”37 in Philippine legal circles, both past and
present. Accused by Justice Johnson of “playing with the Filipinos,”38
Malcolm was also known to be sympathetic to Filipino aspirations for
independence and had been asked by Quezon to draft a proposed con-
stitution for a future Philippine republic.39 To account for Malcolm’s
apparent change of heart, McCoy suggests that he was likely blackmailed
by Governor-General Wood and seems to imply that his Board of Con-
trol decision was flawed for this reason. The determinism immanent in
this style of argument reveals an instrumentalist perspective that is dis-
cernible in the treatment by scholars of Philippine history and law of the
interplay between law, on the one hand, and politics, society, and the
economy on the other. By unpacking Malcolm’s mediation, this section
attempts to loosen the grip of this mindset by providing a sense of the
influence that legal ideology and tradition exert on those who work
with the law and thereby more fully capture the phenomenon of legal
development.
To be sure, Wood was not above lobbying the American justices to
secure outcomes favorable to American interests in crucial cases. As
we have seen, he had kept close tabs on the Alejandrino deliberations.
Because the stakes of the Board of Control cases were very high – perhaps
the highest they had ever been during the colonial period – then it stands
to reason that Wood must have been at least equally invested in this liti-
gation. It thus seems fair to ask whether, and to what extent, politics may
have played a role in Justice Malcolm’s decision. Indeed, there are indi-
cations in Wood’s diary that the Governor-General had tried to influence
the American justices generally and Justice Malcolm specifically. Hear-
ing rumors of Malcolm’s immorality since arriving in Manila, Wood
directed the police to gather evidence of the latter’s illicit relationship
with a native woman and their illegitimate child. A year before the Board
of Control litigation, Justice Johnson could have terminated Malcolm’s
judicial career by presenting such evidence to President Calvin Coolidge,
but “by ordering police to collect damning information that could have
destroyed Malcolm’s career and then moving to bury the scandal and
prevent his dismissal,” McCoy concluded, “Wood had bent Malcolm to
his will.”40
Likewise, it is true that Malcolm’s interpretation gave Wood his
strongest legal rationale among all the pro-Wood opinions. While Justices
Johnson and Sutherland prohibited the Insular Legislature from dealing
with the corporations and also provided the Governor-General with a

broader justification for involvement, neither one granted the Governor-
General the sole right to manage the companies. Justice Malcolm’s opi-
nion, however, supported the position that only the executive, and above
all, the Governor-General, as chief executive, could direct the corpora-
tions. Nullifying the Senate president and speaker’s Board of Control
membership did not automatically vest the power to direct corporate
affairs in the Governor-General. If the goal were merely to prevent leg-
islative leaders from sitting on the Board, then even Justice Johnson’s
stance – that Board membership was law implementation and there-
fore non-legislative – would warrant that result. But, as Justice Malcolm
himself pointed out, “[t]he intimation contained in the conclusions just
reached does not necessarily mean that the plaintiff will be privileged
to substitute the directors designated by the Governor-General for those
designated by the two presiding officers in the legislature.”41 While both
Justices Johnson and Sutherland said that Governor-General could man-
age the companies, neither went as far as saying that he was the only
one who could do so, opening the possibility that the power could be
assigned to another executive official. By definitively classifying Board
and government companies as public, Justice Malcolm subsumed the
power to appoint personnel to run these bodies under the chief executive’s
exclusive power to appoint – an interpretation reinforced by the Jones
Law.
Justice Malcolm based his ruling on a recent “epochal” US Supreme
Court, decision, Myers v. United States, which rejected the US Senate’s
claim that their advice and consent were necessary to both executive
appointments to and removals from administrative bodies (in this case
first-class postmasters) and confirmed the US president’s exclusive power
to remove executive officers whom he had appointed with the upper
house’s advice and consent.42 Decided in 1926, Myers is the first of
several cases signaling the drift in US constitutional jurisprudence toward
an expansive view of federal executive power.43 Collectively, these
cases legally sanctioned institutional developments that began during the
McKinley administration and had given rise to the so-called “imperial
presidency.”
In Myers, Chief Justice William Howard Taft referenced James Madi-
son in finding that the president’s law execution powers reasonably
implied “that as part of his executive power he should select those who
were to act for him under his direction in the execution of laws.” Fur-
thermore, “as his selection of administrative officers is essential to the
execution of laws by him, so must be his power of removing those for

whom he cannot to be responsible.” Agreeing with the proposition that
“the natural meaning of the term ‘executive power’ granted the President
included the appointment and removal of executive subordinates,” the
Chief Justice asked rhetorically: “[i]f such appointments and removals
were not an exercise of the executive power, what were they? They cer-
tainly were not the exercise of legislative or judicial power in government
as usually understood.”44
By strictly construing the Governor-General’s powers under the Jones
Law, Justice Malcolm buttressed Wood’s attempt to monopolize the man-
agement of the government corporations and precluded the Legislature
from using an effective counterstrategy. Liberal construction, while prov-
ing of insignificant utility to the Governor-General, would have greatly
helped the Legislature by offering the Quezon-Roxas advocates a hook
on which to hang their extensive conception of the Philippine Legisla-
ture’s general and residual legislative powers. Justice Malcolm’s strict
interpretation of the Jones Law foreclosed that option.
However, it is one thing to claim that Wood may have coerced Mal-
colm in adopting this theory and quite another to portray his decision was
“wrong” and as contradicting his personal judicial philosophy. As shown,
Malcolm’s majority opinion was consistent with both Philippine and US
constitutional jurisprudence, the prevailing formalist and essentialist style
of judicial reasoning toward separation of powers questions, and the let-
ter of the Jones Law. Against this background, it would have been more
difficult, though not impossible, to justify the Quezon-Roxas position.
That all the Board of Control opinions could potentially be accommo-
dated by the same set of doctrines illustrates law’s fluidity, flexibility,
and indeterminacy. Later US Supreme Court decisions, however, seem to
validate the Board of Control verdict. While more lenient toward con-
gressional delegation of legislative power to administrative agencies,45 the
US Supreme Court, as recently as the early 1990s, has voided Congress’s
attempts to delegate executive power to itself.46 Constitutional scholar
Erwin Chemerinsky attributes the Court’s inconsistent attitudes either to
an “unjustifiable formalism and a refusal to allow the flexibility that is
necessary to govern in the complex world of the late twentieth century,”
or to “judicial judgment that there is less reason to be concerned when a
branch of government is relinquishing its power than when it is assuming
the authority to assigned to another branch.”47 Perhaps this judicial judg-
ment was informed by America’s historical fear of wealth redistribution
by a radically democratic legislature just as this same tradition figured in
Justice Malcolm’s legal consciousness.
Colonial Control through Constitutional Law 233
Likewise, closer study reveals that Justice Malcolm’s Board of Control

opinion did not betray his own philosophy, but is consistent with his
own approach toward separation of powers. This differed from his more
self-consciously progressive stance toward the Insular Government’s leg-
islative and administrative initiatives, as seen in Chapter 5’s discussion
of his equal protection cases. Four years before the Board of Control
litigation, Malcolm clarified his understanding of the departmental the-
ory when he explained the Cabinet Crisis’s ramifications to the American
Chamber of Commerce. He categorically stated that because “Philippine
law, organic and statutory, authorizes a government patterned after the
presidential type,” then the organic act “does not sanction or contem-
plate, that the Philippine Legislature shall superimpose upon the office of
the Chief Executive, laws or bodies which diminish the power of the Chief
Executive,” such as the Council of State and the Board of Control. Fur-
thermore, the Jones Law neither sanctioned nor contemplated “that the
Governor-General shall superimpose upon the Secretaries of Departments
or upon the Philippine Legislature a government of extra-legal advisers.”
Despite loyalties divided between his American compatriots and his Fil-
ipino friends, Malcolm proclaimed his judicial disinterestedness, declar-
ing that he dealt only “with legal principles and not personalities” and
that he stated “these facts impersonally and without malice and without
any desire to reflect in the slightest on the excellent gentlemen who have
sat as members of the Council of State or who have assisted the Chief
Executive in various ways.”48 This speech together with his pre-Board
of Control separation of powers decisions demonstrate that Malcolm
was a formalist when resolving disputes within the government, even if
his due process and equal protection cases show that he was a Progres-
sive toward this government’s activities in Philippine society. Malcolm’s
seemingly schizophrenic jurisprudence, in turn, encapsulates the state of
jurisprudential developments in these two areas of Constitutional Law
in the US mainland and speaks to the autonomy as well as the power of
American liberal constitutional ideology, an ideology that shaped players
like him as they struggled to understand their proper places and legitimate
entitlements within the Philippine colonial order.
Colonial Control through Constitutional Law

Invalidating legislative participation in the Board of Control also voided
by extension all similar arrangements that Filipino legislative leaders
had created during the Harrison years. In practice, the verdict and its
implications seemed to entail nothing more than a straightforward
application of the law. Governor-General Wood’s reaction to the Insular

Supreme Court’s ruling was also matter-of-fact, noting, “it is evident that
the decision was expected by the best informed lawyers and that their
opinion gradually got abroad among the people.” Then it was business
as usual, as Wood set about “looking over the list of possible men to take
the place of those who may be removed from the boards of directors of
the various government-owned companies.”49
The Governor-General’s legal victory was capped by a political one.
Reacting to what they characterized as Wood’s arbitrary rule, Filipino leg-
islators passed a bill calling for a plebiscite on independence. This struck
Wood biographer Jack Lane as a clever strategy, because it allowed Fil-
ipino leaders, who “knew very well that their influence on public opinion
virtually assured a majority vote for independence,” to give the lie to the
long-standing Republican claim that the Filipino majority did not want
independence.50 As expected, Wood vetoed the bill, which the Philip-
pine Legislature easily overrode, thus sending the measure to President
Coolidge for final resolution.
President Coolidge seized the occasion to reiterate his support for
Governor-General Wood in a letter dated April 6, 1927. Reminding
Filipinos of all that they had achieved with American material assis-
tance, the American president sought to disabuse them of the popu-
lar misconception that the United States would be willing to assume
the heavy responsibility of guaranteeing the security, sovereignty, and
independence of the Philippine Islands without the requisite control,
for “[r]esponsibility without authority would be unthinkable.” Because
“American defense is a correlate of American sovereignty, not of foreign
sovereignty,” then it followed that “[w]here there is no sovereignty there
is no obligation of protection.”51 Thus, given the unprecedented condi-
tions of peace, progress, prosperity, and advantages that they enjoyed
under American rule, “the people of the Philippines may well reflect
seriously before wishing to embark on the uncharted stormy sea of
independence surrounded by unknown dangers, in a craft ill-fitted for
the difficulties to be met.”52 In a not-so-oblique reference to the politi-
cos, President Coolidge noted archly that “[t]he ability of a people to
govern themselves is not easily attained . . . It cannot be learned from
books; it is not a matter of eloquent phrases.”53 Filipinos could best
achieve their ultimate goal by demonstrating the “ability to carry on
successfully the large powers of government already possessed,” which
would be “far more convincing than continued agitation for complete
independence.”54
The Board of Control cases vindicated the Taft-era plan for the Insular
Government’s staged evolution toward separation of powers. They also
concretely demonstrated Constitutional Law’s effectiveness as a tool for
managing colonial conflict. By categorizing Wood, on the one hand, and
the Nacionalista leaders, on the other, as executive and legislative, the law
neutralized the parties and stripped them of any hints of their identity or
status. Rather than a despotic exercise of colonial power, the Board of
Control decisions appeared to result from the mechanical application of
legal rules.
But the problem was that neutrality was a lie. Ever-present as the sub-
text in the Philippine colony was the disparity in the parties’ status as
sovereign and subject, colonizer and colonized, American and Filipino.
Quezon and the Senate rejected Wood’s American nominees; government
corporate board and even Insular Supreme Court votes could be mapped
along this divide. A month after Wood had abolished the Board of Con-
trol, Amzi Kelly, a prominent American lawyer residing in the Islands,
wrote to the editors of the Herald and Tribune warning them to “watch
your headings and try and eliminate everything that has a tendency to
turn this affair into a conflict between Filipinos on one side and Americans
upon the other” lest they “wish to prejudice [the] case.”55
Neither was the constitutional scheme balanced to begin with. Just as
the Islands’ unincorporated territorial status formally categorized the Fil-
ipinos’ civilizational inferiority within the federal architecture, the Insular
Government’s internal structure was designed to accommodate Filipino
backwardness and thus was calibrated to ensure that the American-
controlled executive department could always exercise a check on the
Filipino-controlled Legislature, but not always vice versa. American polit-
ical theory regarded the executive, legislative, and judicial branches of the
federal and state levels of government as deriving their respective man-
dates from the sovereign American people. Staffing these branches were
all US citizens, members of the same constitutive American community.
Thus, officials in the three branches could justify their actions within
their designated spheres as being undertaken for and in the name of the
sovereign American people. Adapting this theory to the Philippine Islands,
where sovereignty was severed from popular control, but where popular
consent was still crucial to the legitimacy of the colonial project, presented
peculiar problems.
Sovereignty over the Philippine colony lay in the United States, and
the US Constitution gave Congress plenary authority to determine Philip-
pine policy. Just as the sovereign American people delegated portions of
their sovereignty to the three branches of the US government, Congress

delegated portions of its sovereignty to the Insular Government’s three
branches. But while these three departments derived their authority from
the same source, the delegation of power was not equal. Moreover, the
personnel designated to run the departments were not equal with respect
to each other in the sense that they had different claims on the ulti-
mate sovereign, which was the American people. That is, the American
Governor-General was a full member of the sovereign American people,
who stood above Congress as the colonial sovereign, but Filipino legisla-
tors represented the community of the governed – and a backward com-
munity at that. Since the relative power positions of both the institutions
and the personnel running them were unequal to begin with, mechanically
applying the law to this lopsided configuration would momentarily mask,
but ultimately reproduce, the imbalance. Explaining the Cabinet Crisis
to Manila Americans, Malcolm himself described as an “anomaly” the
Jones Law’s attempt to “set up a nearly impossible form of government,”
which had the following features:
Not foreign to the United States yet foreign in some respects; not sovereign yet
having some of the attributes of sovereignty; not a State and yet patterned after
a State; not under the Constitution, and yet influenced by the Constitution; the
Filipinos not aliens, and yet not citizens of the United States. The government is
such that the laws of Congress and the orders of the President do not operate on
it directly, and is such that the representatives of the Filipino people do not have
the right, unrestricted by outside power, to make their own laws.56
But what most effectively masked the imbalance was not so much the
law, but the American democratic tradition for which the consent of the
governed was a fundamental justification for rule. Although the Filipino
people were not sovereign, their consent substantiated and legitimized
America’s claims to an exceptional colonialism.
Recalling how the Philippine Commission, as the upper house, traded
pet measures with the Philippine Assembly, as the lower house, illustrates
how American officials, on the one hand, always sought to achieve by
persuasion and negotiation what they might have more easily accom-
plished by asserting their offices’ full prerogatives and implementing a
more conventional colonial design. On the other hand, Filipino officials
had tremendous incentive to enlarge their scope of authority and justi-
fied their efforts in the name of the Filipino people. A “power word” in
the mother country’s history,57 “the people” became a potent source of
justification in the colony. It rationalized American accommodation and
the expansion of Filipino autonomy, both tending to obscure interdepart-

mental boundaries. Blurred boundaries could only be tolerated as long
as cooperation existed. During the Wood administration, however, the
respective agendas of the Governor-General and Filipino legislative lead-
ers were decidedly incompatible. With the deck being stacked in favor of
the executive, there was little doubt about who would win in a no-holds
barred contest between the two branches.
But what of America’s developmental colonialism? Portrayed by Jus-
tice Malcolm’s opinion as “conspicuous instances of a paternally inclined
government investing large sums in business enterprises which after acqui-
sition or organization have vitally concerned the Government,”58 the
Insular Government’s authority to directly undertake economic activities
was never challenged in either decision. Because insular jurisprudence had
generally facilitated state paternalism, the question was never whether the
Insular Government could constitutionally get into business, but whether
it should. Thus, in justifying their respective economic strategies, both
Wood and the Nacionalistas invoked essentially non-legal grounds and
took their case to “the people.” Nacionalistas rationalized government
involvement by saying that the companies were being run for the Filipino
people, because they were run by Filipinos in government, no matter how
badly. To justify getting the government out of these public companies,
Wood argued that Filipino public interest was best served not so much by
who was running the government and its companies, but how well they
were being run.
But by assigning to the Legislature the prerogative to determine Insular
Government economic policy, and to the executive, the duty to carry it
out, the constitutional design had intentionally split the locus of deci-
sion from that of execution on the assumption that greater deliberation
between the two political branches would provide more reliable checks on
tyranny. Within this scheme, it was clear that the decision whether to get
government into business belonged to the Legislature, not the Governor-
General. As War Secretary Weeks pointed out to Governor-General
Wood during the Cabinet Crisis, establishing the Philippine National
Bank and other businesses was “within the authority of the Legis-
lature,” and it was for the Legislature to decide “whether these Govern-
ment enterprises are to be carried on or not.” If the Legislature intended
to carry on the businesses and provided for the means to do so, then
it was the Governor-General’s duty to “have it done efficiently.”59 But
what if the Governor-General absolutely refused to implement legislative
policy?
The Board of Control cases clarified that legislators were precluded

by their law-making function from themselves pursuing the economic
policies that they had enacted into law by assigning themselves to bod-
ies like the Board of Control. But if the Legislature wanted to get the
government into business and Governor-General Wood wanted to get
it out, was not Wood effectively substituting his own economic policy
for that of the Legislature’s? Two weeks before the Cabinet Crisis, Sen-
ate President Quezon and Speaker Roxas took issue with the Board of
Control’s April 19, 1923 letter outlining the rehabilitation strategy for
the Philippine National Bank. Clarifying legislative intent, they explained
that in chartering the PNB the Legislature knew that “the Government
was entering into the field of business” and that “it was also aware of
the fact that the bank had to enter into competition with private banks.”
Nonetheless, “these considerations had very little effect, if any, on the
action taken by the Legislature,” which “meant to give the people of the
Philippines their Bank and it was determined to do it.” Given this pol-
icy, Quezon and Roxas concluded that Wood’s PNB program was “at
variance with the purpose of the Legislature, and we think it should be
amended accordingly.”60
If the authority to decide economic policy belonged to the Legislature,
and not to the Governor-General, and the Legislature clearly wanted the
government to stay in business, then Wood’s plan to get the government
out of business was clearly unconstitutional. But what would have been
the Legislature’s remedy? Pre-Board of Control Philippine cases left the
Legislature with none, as the Insular Court had adopted a hands-off stance
toward both political departments. Alejandrino v. Quezon had stopped
short of categorically declaring the Senate’s actions illegal and had pro-
claimed itself without jurisdiction to compel the Senate to reinstate Sen-
ator Alejandrino. As regards the chief executive, Chapter 4 delineated
how the Insular Court had made the Governor-General an impregnable
bastion by categorizing as “official acts” all tasks assigned to him by
statute or inherent in his office, by insulating such “official acts” from
judicial review, and by shutting down virtually all procedural means –
prohibition, injunction, mandamus, habeas corpus, and civil actions for
damages – for challenging his actions in court. Because law execution
was the Governor-General’s constitutional function, the Court would
likely have found itself without jurisdiction to review the substance of
how he was (not) carrying out the legislative mandate. And even assum-
ing that the Supreme Court could rule that the Governor-General’s pro-
gram contravened the legislative mandate, it would have considered itself
Conclusion 239
powerless to compel him to change his course of action. After all, this
was the principle behind Marbury v. Madison, the foundational judicial
review case in US Constitutional Law. Against this institutional and doc-
trinal backdrop, it is ironic that devices like the Board of Control and the
Council of State now seem like reasonable mechanisms for ensuring that
the Governor-General would implement programs that the Legislature
was constitutionally entitled to formulate. By voiding the Board of Con-
trol, the Philippine and US Supreme Courts enabled Wood to unilaterally
thwart the will of the Filipino people’s representatives. Thus, the moral
force of “the people” gave way to the legal authority of the colonial
sovereign, which used the law as a tool to impose its will. In the end,
control trumped consent, revealing America’s exceptional colonialism to
be as coercive as its predecessors and contemporaries.
After the Insular Supreme Court promulgated its Board of Control
decision, Governor-General Wood secured the election of his directors
onto the boards of government companies and proceeded in earnest with
negotiations to sell Cebu Portland’s cement plant, the Manila Hotel, and
PNB’s sugar centrals. But Wood would never see his plans to fruition, for
he returned to the United States on May 28, 1927, to undergo brain
surgery at Boston’s Massachusetts General Hospital and died on the
operating table on August 3, 1927.
Conclusion
Americans took up the White Man’s burden confident that they could
reinvent colonialism. They were convinced that the odious reputation of
colonial rule stemmed more from the way traditional imperialists had
practiced imperialism than any flaws inherent in the arrangement itself.
They believed that a colonialism ruled by law – not just any law, but
by American liberal constitutional and democratic principles – was a
chastened colonialism, both civilizing and civilized. But the Philippine
experience revealed, most eloquently through the Board of Control cases,
that law could only mask and mute, but never alter, the disparity in power
between sovereign and non-sovereign, a division rendered visible by race,
that made the colonial relationship fundamentally coercive. There was
only so much that law could do.
Nonetheless, the faith shown by American colonial actors in the
promise of their liberal constitutional tradition would not have been
misplaced at the turn of the twentieth century. From our postmod-
ern vantage point, the notion that law is shaped by a confluence of
circumstances, material as well as ideological, seems obvious, almost

reflexive. But in the world of late nineteenth-century America, the belief
that there existed universal, natural principles of justice in a hallowed
realm set apart from society, politics, and economics had yet to be shaken.
Rightly or wrongly, this world view both underlay the constitutional rela-
tionships constructed between the United States and its colony as well as
within the Philippine Islands, and animated their respective workings.
One could say that the Board of Control cases demonstrated that the
classical formula could no more guarantee a just result in a relation-
ship as unequal as that between the federal sovereign and its unincorpo-
rated territory than it could for the employers and bakers in Lochner v.
New York. But while the progressive outrage triggered by Lochner was
cacophonous and the changes that ensued numerous and dramatic, the
Board of Control episode did not fundamentally transform assumptions
underlying the reliance on liberal constitutional principles to govern a
colonial order. Indeed, Filipino political leaders basically accepted and
abided by the Board of Control resolution. And rather than reject the
premises and design of America’s liberal constitutional colonialism, the
final chapter will demonstrate how Filipino political leaders ultimately
embraced the regime, even expanded it to its logical extreme, for their
own independent Philippine state.
11
From “Is” to “Ought”
Constitutionalizing Colonial Legacies
Controversial and complicated, the Board of Control story was a micro-

cosm of the American colonial period in the Philippine Islands. Encap-
sulating this saga’s central themes, this event captured its past, preserved
its present, and predicted its future. Its mixed executive-legislative
and American-Filipino composition evoked the program for training
Filipinos in the art of democratic self-government within an American
constitutional framework. Allowing Filipino legislative participation, this
structure was modified to ensure greater American control in the exec-
utive department. Its projects pursued diverse strategies to modernize
the Islands using an interventionist state apparatus. At the same time, the
Board of Control enabled American colonialism to accommodate Filipino
attempts to transform the structure of the Government of the Philippine
Islands. For their part, Filipinos used the Board to enlarge their role and
realize their agenda for the Philippine colonial state. In embodying colo-
nial cooperation and containing colonial conflict, the Board of Control
demonstrated the law’s potential and shortcomings as American imperi-
alism’s tool for neutrally managing the relations between colonizer and
colonized.
For the rest of the American colonial period, the Board of Control
cases settled and froze what had been a fluid, constantly mutating consti-
tutional design in favor of the Taft-era program reasserted by Governor-
General Leonard Wood. No longer seriously challenged, the Insular
Government’s constitutional configuration subsequently remained intact
until the end of American rule, for the arena of struggle shifted to Wash-
ington. Recaptured by the Democrats in 1933, the US Congress resumed
241
242 From “Is” to “Ought”: Constitutionalizing Colonial Legacies
the independence debates of the Wilson years, but under circumstances

increasingly receptive to severing ties with the Philippine colony.
Finally, the Board of Control settlement offered a glimpse into the
future independent Philippine republic, for framers of the 1935 Consti-
tutional Convention essentially reconstituted the Insular Government of
the Wood years as the new Philippine government. One could say that the
American program for granting Philippine independence was as excep-
tional as the colonial regime that it terminated. Unlike most imperialist
occupations, the end of American colonial rule in the Islands came about
peacefully and through legal processes, such as the passage of indepen-
dence legislation, its acceptance by the Filipino people, and the drafting
and ratification of the Philippine Constitution. If the 1935 Philippine
Constitution were likened to a final exam that assessed the success of the
Filipinos’ fifty-year education in American-style constitutional democ-
racy, then for better or for worse, America’s little brown brothers learned
their lessons well – perhaps too well.
Denouement
The Board of Control verdict scaled back Filipinization’s institutional
reach to Jones Law parameters. There it remained for the rest of American
rule, though not for lack of Filipino protest. Although Filipino legislative
leaders longed to reclaim the executive powers they had usurped dur-
ing the Harrison period, Governor-General Henry L. Stimson, Leonard
Wood’s successor, scrupulously enforced the Jones Law’s division of
authority between the executive and legislative branches. Stimson revived
the Council of State, the mixed executive-legislative super-cabinet of
the Harrison administration, but relegated it to a purely advisory role.
Mindful of the open hostility that displaced previously cordial rela-
tions between the American colonial executive and Filipino legislators,
Stimson reassured Filipinos that he would not reverse Filipinization,
but likely referred more to the Insular Government’s personnel than its
design.1
Stimson replaced the government companies’ management, but did
not privatize them and generally pursued the same economic strategy
as Wood had before him. He tried to stimulate American investment in
the Islands to create what Frank Golay describes as “an American eco-
nomic interest of unprecedented magnitude” that would offset growing
demands by Democrats and liberal Republicans to grant independence
and restrict the entry of Philippine sugar and labor into the American
Denouement 243
market. For mutual free trade, Golay explains, had increased Filipino
attachment to the United States, but not the other way around. Worried
about the increasing desire of American sugar interests to curb Philippine
imports, Stimson advised Filipinos to liberalize, worked toward relax-
ing restrictions on private access to public land, and amended Philippine
corporate law to encourage American investment.2
Henry L. Stimson began his legal career as an associate in Elihu Root’s
New York law firm and remained a protégé of Root’s throughout his
career. With Root’s encouragement, Stimson moved from private practice
to public service by accepting the appointment as the US Attorney for
the Southern District of New York. Having later lost a race for New
York governor, he was tapped by President William Howard Taft to be
his Secretary of War. Like William McKinley, Root, Taft, and Wood,
Stimson was a “firm retentionist.”3 But unlike Wood, Stimson displayed
greater sensitivity and sympathy toward Filipinos and, as a result, found
a more receptive audience for fundamentally the same policies.
McGeorge Bundy, who helped Stimson write his memoirs, surmised
that Stimson’s greatest asset as Governor-General was that Filipinos
trusted him. Stimson met Manuel L. Quezon and Sergio Osmeña when he
toured the Islands in 1926 at Wood’s invitation in the hopes of broker-
ing a truce between Wood and Filipino leaders. Despite failing to make
peace between them, Stimson nonetheless impressed Quezon and Osmeña
enough for them to sail to Washington after Wood’s death to lobby
the Coolidge administration for Stimson’s appointment as Governor-
General and to urge Stimson to accept the post. Stimson believed that
Filipino leaders reciprocated his trust in them, explaining that “it was
better to trust and be betrayed than to make mutual confidence impos-
sible.” As Governor-General, Stimson habitually conferred with Filipino
leaders prior to making executive decisions and would describe these
decisions as actions “in which Filipinos had participated or which they
had suggested.”4 Thus, in Quezon’s estimation, “no representative of
the United States in the Philippines had won my respect and even my
personal affection than did Governor-General Stimson.” Because “he
never left me in doubt as to what he had in mind whenever he expressed
his ideas on any subject,” Stimson “made me feel that he gave me his
entire confidence exactly as he would have done it if I had been an
American sitting at his council table as the senior member of his official
family.”5
On a personal level, Governor-General and Mrs. Stimson were friendly
to Filipinos and followed Taft’s practice of carefully “avoiding even the
appearance of racial snobbery.” They ceased to worship at the local

Presbyterian church, the church to which they had originally belonged,
because it excluded Filipinos, and instead attended services at the Epis-
copalian church, which was open to all. Most significantly for Filipinos,
they were welcomed to Malacañang Palace’s social functions, with Mrs.
Stimson once paying the ladies the compliment of donning the traditional
Filipina evening dress at an important ball.6 Earning the Filipino lead-
ers’ cooperation and respect, Stimson succeeded in pursuing essentially
the same agenda as Wood without needing to constantly insist on his
prerogatives as Governor-General.
Subsequent Governors-General also blocked Filipino attempts to
regain executive powers won under Harrison. When Stimson left the
Islands to become President Herbert Hoover’s Secretary of State, his suc-
cessor Dwight F. Davis likewise resisted Filipino efforts to expand their
powers and wielded the veto even more frequently than had Wood. A
highly successful diplomat who had served as President Calvin Coolidge’s
War Secretary and an outstanding athlete for whom tennis’s Davis Cup
was named, Davis even tried to end a long-standing practice begun under
Governor-General W. Cameron Forbes of diverting portions of the public
works appropriations for pork barrel.7 Only Governor-General Theodore
Roosevelt, Jr., Davis’s successor, approved bills requiring Council of State
approval for government projects. This was because Quezon managed to
capitalize on Theodore Jr.’s distraction when the latter tried to secure the
Republican presidential nomination and run against his cousin Franklin
Delano Roosevelt. But even the New Dealer Frank Murphy, the Islands’
last Governor-General, vigilantly rejected measures conferring governing
authority on the Council of State. On the whole, however, skirmish-
ing with Governors-General was minimal, as Filipino leaders became
increasingly preoccupied with Washington due to growing concern over
the accelerating drive in Congress toward independence and the impend-
ing loss of free trade privileges. Rather than negotiate the distribution
of power between colonizer and colonized on the ground, American and
Filipino leaders began to turn their attention toward the contours and
character of postcolonial US-Philippine relations.8
The Independence Drive

Compared to the predominantly ideological discourse surrounding the
decision to retain the Philippine Islands, independence talk was strikingly
pragmatic. For one, members of Congress were reluctant to continue
The Independence Drive 245
bearing the cost of defending the Islands that President Theodore Roo-
sevelt had identified as America’s Achilles’ heel during the 1905 Russo-
Japanese War and were vulnerable to growing Japanese aggression in
the Pacific. For another, American agricultural interests wanted to end
the duty-free entry of Philippine commodities to arrest the American
economy’s steady deterioration. Nativists similarly dreaded invasion by
hordes of Filipino migrant laborers, whose status as US nationals facil-
itated their entry into the United States. Such resentment even fueled
anti-Filipino riots in California during the Depression.9 If assuming the
imperial burden had been justified by the good that the United States
could do for the Philippine Islands, then relinquishing them was impelled
by fear of the threats that the Philippine colony posed to the American
metropole.
Panic and Equivocation

This shift in mainland attitudes altered the long-standing Filipino strat-
egy for dealing with Washington. Throughout the American colonial
period, independence talk gave Filipino leaders like Osmeña and Quezon
tremendous leverage in their relations with American colonial officials
and the Filipino electorate. Although they might have preferred protec-
torate status, Filipino leaders repeatedly played the independence trump
card to wrangle greater autonomy from American officials in Washing-
ton and Manila, who, in turn, were anxious to preserve colonial cooper-
ation that meant Filipino assent to American rule. They also milked its
fiery rhetoric to win elections and retain power. But as the prospect of
going it alone became more real and imminent, Filipino leaders began to
equivocate.
Golay notes that independence could have materialized as early as
1924. Louis Fairfield, Indiana congressman and head of the House
Committee on Insular Affairs, sponsored the Fairfield Bill, which pro-
vided for an autonomous commonwealth government and a plebiscite
on independence to be held at the end of thirty years. Fairfield had
invited Quezon, Osmeña, Manuel Roxas, and other members of the
Independence Mission who were in Washington at the time to suggest
amendments, and he accepted substantially all but one of them. Inter-
estingly, Quezon and his allies were keen to require a plebiscite that
would leave open the option of rejecting independence at the end of
the commonwealth period. Challenged by Democrata and fellow mis-
sion member Claro M. Recto, Nacionalista mission members dropped
the plebiscite provision, lest their support be exposed and interpreted as
insincerity about independence. Constantly altering the terms of inde-

pendence proposals, Quezon conveyed ambivalence to Secretary of War
John Weeks, who promised Coolidge administration support for the Fair-
field Bill only if it received the Filipino leaders’ “outspoken support.”
Meanwhile, the legislative session expired, and the bill was lost.10 This
episode typified Nacionalista dealings with retentionist administrations,
with both sides privately agreeing on autonomy, but presidential adminis-
trations reluctant to back the plan without the Nacionalista leaders’ pub-
lic endorsement. In turn, ruling Nacionalistas could not support auton-
omy without contradicting the independence advocacy that kept them in
power.
Severing the Free Trade Ties That Bind

By Quezon’s assessment, only the masses unequivocally desired imme-
diate independence. Most educated Filipinos appreciated the need for a
transitional period for the Islands to adjust to the risks of losing US polit-
ical and economic support. Yet younger, more idealistic elites like Claro
M. Recto were willing to brave independence. Foremost among these
risks was the loss of free trade relations with the United States, espe-
cially for sugar. When Congress restricted American capital’s ability to
develop the Islands, then-Governor-General Taft hoped free trade would
create the economic ties that would bind colony to homeland, perhaps
permanently.
Bringing the Islands behind America’s tariff wall did stimulate Philip-
pine export growth, with values rising from $62,779,922 between 1905
and 1909 to $99,632,918 between 1910 and 1914.11 Free trade expe-
dited the modernization of sugar milling facilities through capital invest-
ments from Americans in Hawaii and California and the Islands’ Spanish
residents. Filipinizing the economy under Harrison enabled Filipino
businesses to compete with foreign investors, thanks to the Philippine
National Bank’s generous financing.12 Under the Payne-Aldrich Act’s
300,000-ton limit, Philippine sugar interests exported an average of
171,232 metric tons to the United States from 1909 to 1913. After the
Underwood Bill eliminated this quota and the Panama Canal’s opening
reduced transportation costs, Philippine sugar exports reached an average
of 252,833 metric tons from 1914 to 1918, during the boom spurred by
World War I. The movement of sugar also illustrates the shift of Philip-
pine trade to the United States. In 1898, the US share of sugar exports was
15 percent compared to 59 percent for China, Japan, and Hong Kong and
26 percent for Great Britain. By 1914, these proportions were reversed,
The Independence Drive 247
with the United States buying 72 percent of Philippine sugar compared

to 26 percent by China, Japan, and Hong Kong and 2 percent by Great
Britain.13 By 1930, the US share of Philippine sugar reached 98 percent.14
John Larkin notes that within America’s tariff walls, Philippine sugar’s
share of total production was fractional, but its share of total imports
tripled from 7.6 percent in 1921 to 24 percent in 1933. Thus, when the
role of foreign capital and management in the Philippine sugar indus-
try declined in the 1920s and 1930s and sugar prices plummeted during
the worldwide economic depression of the 1930s, anthropologist Michael
S. Bilig observes that “American sugar interests increasingly perceived the
Philippines as a foreign competitor”15 and clamored to cut the Islands
loose.
Alert to this restive mood, Governors-General Stimson and Davis urged
economic diversification even while working to retain Islands. Unfortu-
nately, sugar elites invested their profits, not in equipment or improving
farming techniques, much less in launching new businesses, but in passive
assets or in supporting their fabulous lifestyles, while relying on credit to
finance production.16 As independence loomed, the Islands were ill pre-
pared to sever the economic umbilical cord.
Independence Won
Despite their fears, Filipino political leaders could ill afford to back reten-
tion. Public support for independence was essential to retaining power in
the present and practically guaranteed leadership in the future. Because
Quezon appeared to have “won” passage of the Jones Law that expanded
Filipino autonomy, Jose Romero, Quezon’s trusted lieutenant and a con-
gressman from Negros Oriental, believed this made him a political hero
and enabled him to oust Osmeña as the top Filipino political leader.17
Toward the end of the Hoover administration, the Independence Mission
led by Osmeña and Roxas obtained independence legislation in the form
of the Hare-Hawes-Cutting Act, subject to the Philippine Legislature’s
acceptance. Staying in the Islands partly due to illness, Quezon not only
campaigned against this law, but also maneuvered to remove his rivals’
supporters from key positions in order to ensure its rejection.
While less than ideal, the Hare-Hawes-Cutting Act was the best
package Osmeña and Roxas felt they could obtain. It contained three
controversial features. Most contentious was the measure’s staggered
schedule that would gradually diminish duty-free Philippine exports to
the United States over a period of ten years. It also capped the num-
ber of Filipino immigrants. Finally, the act allowed the United States to
maintain major military installations throughout the Islands to counter

the growing Japanese threat. Closely allied with interests fearing the end
of free trade, Quezon also took offense at provisions restricting Filipino
immigration and retaining US military bases. Heading his own Indepen-
dence Mission to Washington, Quezon secured from the new Roosevelt
administration passage of the Tydings-McDuffie Act, which essentially
reenacted the Hare-Hawes-Cutting Act’s free trade, immigration, and
defense stipulations. Quezon’s success enhanced his chances of captur-
ing the Commonwealth presidency and brought him one step closer to
becoming the first president of the independent Philippine republic.
Colonial Legacies Constitutionalized

On the cusp of nationhood, Filipinos had one last hurdle to clear – draft-
ing their own constitution. If the 1935 Philippine Constitution measured
how much Filipinos had imbibed of American constitutional democracy,
then they passed with flying colors. Their charter embodied not only colo-
nial constitutionalism’s text and practice, but also developments toward
their logical evolution.
Aside from mandatory provisions governing trade and defense, the
Philippine Independence Law very broadly specified a republican form
of government, a Bill of Rights, and absolute toleration of religious free-
dom. Within these broad parameters, Filipino delegates could have con-
figured authority and rights differently from the Insular Government.
Yet despite comparing US and Philippine constitutionalism with those
of Spain, Cuba, and Great Britain, framers opted for the familiar. Like
the colonial government, its Philippine progeny would be dominated by
a formidable executive and empowered to intervene for the good of the
Filipino public.
Executive Supremacy
According to Delegate Jose M. Aruego, a political scientist, framers basi-
cally modeled the structure and functions of the three great branches after
their colonial constitutional antecedents, carrying over their unequal dis-
tribution of authority. No extended debates surrounded the adoption
of executive department provisions, “principally because they had been
taken largely from the Jones Law and the American federal and state
Constitutions, which for historical reasons exercised a very dominating
influence among the framers in the determination of their decisions.”18
This entrenched the constitutional design as elaborated by the Board of
Colonial Legacies Constitutionalized 249
Control cases, which consisted in a central government tilted toward an

executive whose dominance over its internal structure was fortified by
his near-exclusive control over the administrative apparatus.19 Delegates
tried to ensure the bureaucracy’s independence by constitutionalizing the
civil service mode for selecting and promoting government personnel
through merit and fitness and elevating the civil service commission to
an autonomous constitutional body, but nonetheless left undiluted the
executive’s authority over a bureaucracy whose policies and activities he
continued to determine and direct.
Legislative checks on executive power were attempted, most signifi-
cantly by the creation of a Permanent Commission of twenty-five legis-
lators to consider appointments and discharge “such other functions as
are herein conferred upon it.” This body closely resembled the aborted
Malolos Constitution’s Permanent Commission, which was created to
counterbalance the Philippine president who also headed the Revolution-
ary Army. Battling with Governor-General Wood as Interior Secretary
during the Cabinet Crisis taught Delegate Jose P. Laurel of Batangas that
such a body was necessary, for “the legislative power can be rendered
ineffective or nugatory by an unwilling and recalcitrant Executive.”
But leery of instituting hierarchies among legislators, framers rejected
a bicameral legislature with a Senate and House of Representatives in
favor of a unicameral National Assembly. Their wariness extended to the
Permanent Commission, which they considered a similarly oligarchic,
aristocratic, and “undemocratic super-body” within the Assembly.20
That the Board of Control settlement persisted perhaps owes partly
to the invisible influence of two major colonial political players, namely,
Justice George A. Malcolm and Senate President Manuel Quezon. With
Filipinos taking their first steps toward independence, American officials
generally avoided even the appearance of interference with the Constitu-
tional Convention. Former Vice-Governor of the Philippine Islands and
University of Michigan political scientist Joseph Ralston Hayden noted
that Governor-General Murphy declined to attend the convention’s open-
ing ceremonies, and the US Attorney General refused “Quezon’s request
for rulings upon various provisions in the draft constitution.”21 Justice
Malcolm, however, described himself as an “unseen delegate,” because
his expertise and personal relationships with the delegates made his advice
indispensable. Malcolm was “well acquainted with most of the dele-
gates,” who were predominantly lawyers, “[a]s was to be expected,”
and “constituted a typical group of leading Filipinos.” Among the 202
framers were “about thirty who had studied Constitutional Law in my
class,” some of whom “came over to salute their old Professor” at the
first session and “frequently dropped in to talk over their perplexities
with me” throughout the six-month drafting period.22
Although behind the scenes, Quezon was, in Hayden’s words, “never
far removed from the controls of the Convention.” Even before the
Convention commenced, Quezon and Osmeña agreed to set aside dif-
ferences following their bitter and bruising battle over the indepen-
dence law and convened their factions jointly and later separately to
determine the convention’s format and organization, to allocate officers
between both sides, and to keep factional conflict out of the proceed-
ings.23 Because Americans had invoked fragmentation among the natives
to deny Filipino nationhood at the onset of US rule, this show of unity
was intended to demonstrate Filipino readiness for independence. This
also meant that Filipino leaders, especially Quezon as the majority fac-
tion’s leader, carefully orchestrated convention proceedings. Consistent
with his practice as Senate president, he held caucuses with allies parallel
to the main deliberations and received regular updates from trusted lieu-
tenants. Consequently, “few decisions of major importance were made
without [his] knowledge,” and the main characteristics of the charter
bore his imprint24 – an imprint molded by long experience in the Insular
Government.
Informed by a Governor-General who monopolized government
authority, Quezon favored a Philippine president who could exercise the
same formidable prerogatives without impediment. Like his predecessor,
the Philippine president was given the sole power to suspend the privi-
lege of the writ of habeas corpus and impose martial law anywhere in
the Philippines in the event of actual or imminent danger of invasion,
insurrection, or rebellion “when the public safety requires it.” Delegate
Salvador Araneta proposed empowering the National Assembly instead
of the president, to suspend habeas corpus, but framers rejected this and
similar proposals to weaken executive power.25 Instead, framers further
fortified the president by granting him “even greater and more explicit
authority than his American counterpart,”26 such as the power to call
out the armed forces “whenever it becomes necessary” to prevent or
suppress actual outbreaks of “lawless violence, invasion, insurrection, or
rebellion.”
Moreover, the Philippine president was given extraordinary economic
authority. Cognizant of developments culminating in the New Deal,
Filipino framers believed that President Franklin Roosevelt had been
unduly hampered by the “usual processes of democracy” that were
“cumbersome” and “inadequate to cope” with the Great Depression.

Consequently, they limited the Legislature’s role to “simply say[ing] to
the President . . . that a national emergency exists” and to directing that
all government resources be “devoted to that national emergency,” effec-
tively delegating to the president “the power to carry out or to declare a
national policy.” Far from being the brainchild of the Special Committee
on Style that consolidated the draft charter, this measure was identified
by Delegate Manuel Roxas of Capiz as “simply an adoption” of the
US National Recovery Act.27 To Malcolm, this produced a Philippine
president, who “as head of state, determines government policies – both
domestic and foreign – guides legislation, and dominates the administra-
tion.”28
By preserving colonial constitutional arrangements, framers trans-
ferred over an insular jurisprudence that shielded from judicial scrutiny
the chief executive’s exercise of all official acts, whether ministerial or
discretionary, assigned to him by law or by the nature of his functions.
By Roxas’s own admission, the only checks on this hegemonic executive
were Philippine public opinion, which the youthful Delegate Wences-
lao Q. Vinzons of Camarines Sur considered “not well developed,” and
impeachment, which Vinzons described as “dead letter.”29 To Vinzons,
a “greater restraint” on executive power was the provision limiting the
president to one six year-term without reelection, but Commonwealth
President Quezon would make short shrift of this constraint by amend-
ing the 1935 charter to allow his reelection a mere six years after its
adoption and ratification.
Government Activism for the Filipino Public

Filipino delegates likewise preserved an activist government whose civi-
lizing mission and modern regulatory capabilities facilitated its reach into
the most private spaces. State interventionism was justified by a preliberal
conception of police power in a “well-regulated society” that functioned
outside the institutional checks of federalism and was divorced from the
popular will that it was ostensibly designed to empower. Having adopted
the colonial separation of powers, framers also maintained the colonial
relationship between state power and the Bill of Rights.
That delegates privileged the constitutional status quo is understand-
able in light of their vast practical experience in colonial constitutional
law and government. At least eighty-five delegates out of 202 had served
in central and local government units.30 Although representing differ-
ent geographic regions throughout the Philippine Islands, framers shared
similar backgrounds, having attended the same Manila and US schools

and belonged to the same socio-economic circles. Also striking is the del-
egates’ legal experience. Comprising 142 out of 202 delegates, lawyers
dominated the professions represented in the Convention.31
Such intimate acquaintance with colonial constitutional experience
seems to have translated into an impulse to perpetuate it. Thus, when
Delegate Araneta suggested amending the due process clause to reflect
the Philippine Supreme Court’s interpretation and application,32 Bill of
Rights chairman Jose P. Laurel, who coauthored a constitutional law
textbook with Justice Malcolm, flatly rejected the proposal. He feared
that “if we had to substitute the phrase with another, we would be giving
way to a change probably of certain interpretations and it would be
necessary to set aside decisions consecrated since time immemorial, from
the time of [US Supreme Court Chief Justice John] Marshall, and also
decisions laid down by courts in our jurisdiction.” Furthermore, Laurel
was skeptical that Araneta’s suggestion would improve “the sense or the
expression or even the language used in this draft of the Constitution.”33
Laurel’s position prevailed over this and similar proposals to reword
familiar phrasings of Bill of Rights guarantees.
By keeping the organic acts’ Bill of Rights formulation, delegates
imported colonial interpretations that had shaped Filipino understandings
of their extent and content. Colonial-era equal protection jurisprudence
had authorized discriminatory legislation against “undesirable foreign-
ers,” “uncivilized” tribal peoples, and “social lepers” and defined by
exclusion who constituted “the public” for whom the Insular Legislature
enacted both protectionist and paternalistic measures. This “public” was
the same Hispanicized Filipino majority that infused “the people” with
a Filipino identity in the political sphere and gave legal expression to a
concept that had exceptional potency in a democratic polity.
Delegates drew an even more direct and explicit connection between
“the public” and “Filipino” when they imposed strict nationality require-
ments on the right to own, develop, or manage many areas of the Philip-
pine economy, such as public lands, minerals, waters, special corporate
franchises, and public utilities.34 Such criteria recall the Insular Legisla-
ture’s measure restricting inter-island shipping to US nationals during the
Harrison years. During debates, delegates repeatedly mentioned Filipino
disadvantage against foreign competition to justify nationalizing as many
sectors as they could. Delegate Vinzons suggested requiring all agricul-
tural, commercial, and industrial establishments to employ Filipinos for
at least 75 percent of their work force. Lamenting the Philippine rice
industry’s tragedy, where “rice is produced by our countrymen at great

cost,” but “when it is ready for the market, the foreign middlemen with
little investment and risk trade on it at a big profit,”35 Delegate Florentino
Chioco of the rice-producing province of Nueva Ecija proposed amending
the provision on public utilities to require warehouses, which were then
95 percent foreign-owned, to be 100 percent Filipino-owned. Equating
“public” with “Filipino,” his approach evokes that pursued by Osmeña’s
national economic development plan through the Board of Control and
the government corporations it managed. While ultimately unsuccess-
ful, Chioco’s suggestion reflected the delegates’ nationalist sentiment and
illustrates how the colonial-era strategy of translating nationalism into
public control impacted the framers’ constitutional approaches. Que-
zon managed to block the more radically protectionist policies in order
to avoid antagonizing Americans and other foreigners,36 but those that
survived were so far-reaching that the United States later conditioned a
treaty for much-needed post-World War II rehabilitation assistance on the
Philippine Republic’s enactment of a constitutional amendment granting
Americans parity rights with Filipinos.
When framers did tweak the due process clause’s colonial interpreta-
tions, they carved out narrow exceptions to its application while preserv-
ing the general rule. One such exception was the social justice principle.
Chapter 9 discussed the Philippine Supreme Court’s emerging judicial
independence through its adoption of Lochner v. New York’s substan-
tive due process doctrine in People v. Pomar, which voided maternity
leave legislation for infringing on the freedom of contract. Inspired by
progressive developments that had similarly undermined Lochner’s clas-
sical legal paradigm in the US mainland,37 Filipino delegates overrode
Pomar and created constitutional exceptions to due process by enshrin-
ing social justice as a national policy38 and by explicitly providing that
“the state should afford protection to labor, especially to working women
and minors.”39 Sponsoring this social justice provision was Delegate Jose
Locsin, a lawyer, farmer, and erstwhile governor of Negros Occiden-
tal. Of 202 delegates, twenty were “farmers,” albeit not in the mold of
Thomas Jefferson’s yeoman farmer, but closer to the Southern planta-
tion elite of which Jefferson himself was a member. Others representing
Negros Occidental and Negros Oriental, which along with Pampanga
were the Islands’ major sugar-producing areas, were similarly engaged
in “large-scale farming,” such as Pedro C. Hernaez, Juan L. Ledesma,
Vicente Lopez, Enrique J. Montilla, and Hermenegildo Villanueva, all
well-known members of the sugar elite.40 As discussed, this sector derived
tremendous benefit from Insular Government initiatives throughout the

colonial period, including the importation of inoculated carabao dur-
ing the rinderpest epidemic and the construction of roads and railroads
connecting sugar plantations to sugar centrals and sugar centrals to mar-
kets and ports. More importantly, they received direct institutional and
financial support from specially created government bodies like the Sugar
Central Board and the Philippine National Bank.41 So intertwined were
the fortunes of the Insular Government with the sugar elite that govern-
ment liberality toward the latter almost bankrupted it when inordinately
high wartime prices dropped precipitously at war’s end and caused sugar
centrals to default on their loans.42
It was the sugar farmer Locsin who explained that the idea of social
justice meant justice to the common man:
For the proletariat, social justice is a program of action for breaking down the
dikes of selfishness, which concentrate wealth and well-being in the domain of
the privileged few in order to scatter and spread them throughout the plains where
the masses of people encamp themselves. To make this action effective requires
a strong government, jealous and avaricious of all its prerogatives, collectivist in
its orientation.43
Blending primarily New Deal and Christian Democratic approaches to

protecting via forms of social insurance those vulnerable to the disloca-
tions attendant to market capitalism’s operations, this provision had two
purposes. First, it was meant to “serve as an inspiration, as a command
to the Legislature to enact laws embodying the spirit and the principles
of social justice.”44 Second, it was to “serve as a guide to the courts of
justice in this country in the interpretation of the terms and provisions
of the Constitution.”45 Specifically, this policy was intended to temper
the harshness of neutrally applying, after the classical legal fashion, pro-
visions like the due process clause in cases involving the disadvantaged.
By formally recognizing in law the inequalities that in fact existed in
Philippine society, the social justice provision abolished the jural equal-
ity of American liberal constitutionalism and exemplifies the influence
of Progressive legal thought. The 1935 Constitution contained several
other such provisions that highlighted what Delegate Manuel Abella of
Camarines Sur described as the document’s “social aspect” and attested
to the Filipino charter’s “progressive spirit,” demonstrating that “the
framers are awake to the pressing needs of the country.”46
To be sure, framers were astutely aware of widespread poverty and
suffering in their midst. But altruism seems not to have been their con-
stitutional benevolence’s primary motive. Rather, they seemed more con-
cerned that the system, which had disproportionately enriched their class
above others, would collapse. The staggering profits enjoyed by sugar

elites had not trickled down to their tenant farmers and sharecroppers,
who continued to live hand-to-mouth. Worse, the commercialization
of agrarian economies eroded traditional patron-client ties throughout
Southeast Asia,47 fed the agrarian discontent sweeping the Islands in the
1930s, and fueled radical mobilizations, like the Sakdal movement.48
Calling the extant socio-economic organization “a real failure,” Locsin
understood why “the masses of our people join the files of the associations
labeled by the government as ‘red,’” and thought that “the explosion of
more or less bloody strikes, and our prisons being filled with convicts for
theft, robbery, and sedition” was “natural.”49 While acknowledging sys-
tem failure, framers did not radically reexamine its foundations or legal
supports, much less contemplate redistributing the property and privi-
lege secured to them by prevailing institutions. Rather than overhaul the
entire system, framers accommodated challenges posed to it by creating
exceptional categories governed by exceptional rules.
In this light, Locsin’s enlightened progressivism appears to be a desper-
ate, albeit sincere and well-meaning, attempt by the Islands’ political and
socio-economic elites to save the status quo by constitutionalizing the
paternalism that characterized Philippine social relations and by turn-
ing the Government into a “super-patron” after their own image. Two
years after the Philippine Commonwealth’s inauguration, President Que-
zon dramatically told the Foreign Policy Association in New York, “The
philosophy of laissez faire in our Government is dead,” the Islands now
being guided “by the philosophy of government intervention whenever
the needs of the country required it.”50 Quezon’s declaration typifies per-
fectly the Filipino ruling elite’s assumption that it was, as it has always
been, their role and duty to determine the country’s needs and the kinds
of government interventions that would address them. Thus, Filipino
framers seemed to believe that exempting the underprivileged from the
general operations of the due process clause would free them, as gov-
ernment actors, to do what they thought was much good. The problem
was that this well-intentioned modification further enfeebled an already
weak and largely meaningless mode of constitutional scrutiny by shrink-
ing its scope and created tremendous potential for abuse. In the hands
of elite patrons who reflexively equated their view of the public good
with that of the Filipino majority they represented and who felt that
their Filipino nationality entitled them to supplant foreigners in their
controlling position over the Philippine political economy, a government
freed from such constitutional restraints would facilitate and exacerbate
elite domination. Ironically, the greatest hope for minimizing the colonial
legacy’s pernicious impact on Filipino individual rights lay precisely in the

judicious enforcement of the neutral and formal rules of the very classical
legal paradigm that Progressive and Realist advocates in both metropole
and colony had derided as reactionary conservatism and found fit to
upend.
Codifying Contradictions
In essentially preserving the colonial constitutional order, the 1935 Con-
stitution reproduced the incompatible tendencies of a colonial practice
that combined elements of a nineteenth-century liberal individualism,
on the one hand, with “vast extensions in the sphere of governmen-
tal functions,” on the other. These tendencies, in turn, reflected a more
fundamental contradiction characterizing the attempt to justify colonial
subjugation within democratic constitutionalism. Because of the discon-
nect between the charter’s principle and practice, Delegate and future
Commonwealth Education Secretary Jose Reyes of Sorsogon criticized
the Constitution for having “no definite philosophy.”51
The task of defending the confused and contradictory elements of the
new constitution fell to Delegate Roxas, who had been Speaker of the
House of Representatives in the 1920s, part of the Board of Control with
Wood and Quezon, and a charter member of the Osmeña-Roxas Inde-
pendence Mission that obtained the first Philippine Independence bill.
He described his philosophy of government as “a practical science, not
a theory, and a government can be successful only if in its structure due
consideration is given to the habits, the customs, and character, and,
as McKinley said, even to the idiosyncrasies of the people.”52 Conced-
ing its theoretical inconsistencies, Roxas nonetheless praised the 1935
Constitution for embodying the Filipino experience and conception of its
American liberal constitutional inheritance. Though American in origin,
it had become, in the crucible of colonial practice, a Filipino Constitution,
warts and all. The future president of the postwar Philippine Republic
summarized his defense thus:
Why have we preferred the Government established under this draft? Because it
is the Government with which we are familiar. It is the form of government
fundamentally such as it exists today; it is the only kind of government we
have found to be in consonance with our experience, and with the necessary
modification capable of permitting a fair play of social forces and allowing the
people to conduct the presidential system.53
The text and practice of colonial constitutionalism thus engrafted

Filipino understandings of executive, legislative, and judicial power and
Conclusion 257
of the scope and substance of the public and private spheres. The resulting
document entrenched and institutionalized colonial expectations and con-
ceptions of the structure and shape, the roles and rules of the Philippine
constitutional order. Indeed, the “is” of the colonial constitutional con-
vention became, in 1935, the “ought” of the postcolonial constitutional
order. Accordingly, the Philippine president embodied the colonial expe-
rience of executive power exercised by Governors-General who enjoyed
vast prerogatives without any meaningful check except the US president.
Delegates also incorporated the colonial regime’s modern administrative
apparatus into the Philippine government and gave those directing it vir-
tually untrammeled discretion to define the public interest, the relevant
public’s identity, and the measures that would best secure public interest.
Legitimating this arrangement was a judiciary whose colonial precursor
had crafted doctrines unleashing government power and whose already
constricted scope of scrutiny had been further circumscribed by the 1935
Constitution.
Unchecked from within by feeble institutional competitors and unim-
peded from without by an equally anemic Bill of Rights jurisprudence, this
dangerous combination was concentrated in the office of the Philippine
president, rendering its occupant practically a law unto himself and mak-
ing this post the most coveted prize in the elections of the self-governing
republic. By no means an innovation, this configuration of authority basi-
cally replicated that which ordered the relationship between Congress
and its agents, on the one hand, and unincorporated US territories like
the Philippines, on the other. Thus, the constitutional imperialism exer-
cised by Congress and personified by the American Governor-General
was reincarnated in the constitutional tyranny that was latent in a Philip-
pine presidency at the helm of an imperious Philippine state. In control
of this republican leviathan, Filipino elites led by the Philippine presi-
dent would invoke a reconstituted colonial constitutional theory to jus-
tify their deployment of policies, measures, and institutional mechanisms
that would realize and reproduce colonial expectations and understand-
ings that went well beyond those in the American colonial period as they
applied them to situations yet unforeseen.
Conclusion
On a bright November morning, Manuel Luis Quezon paraded “through
streets decorated with American and Filipino flags, under artistic and sym-
bolic arches, to the legislative building where the inaugural ceremonies
were to take place”54 to take his oath as president of the new Philippine
Commonwealth. Beyond inducting a chief executive, Quezon understood
the event’s broader significance as that of the Filipino people “bringing
into being a new nation,” which was “the fruition of our age-old striv-
ing for liberty.” Equally significant, the colony assumed sovereignty, not
through violence, but through a peaceful transfer of power that was, in
Quezon’s words, merely “the final stage in the fulfillment of the noblest
undertaking ever attempted by any nation in its dealing with a subject
people.” Just as legalities attended American colonialism’s inception in
the Islands, so, too, did they bring about its end. With the adoption and
acceptance of independence legislation, the drafting and ratification of a
constitution, and, finally, elections, the birth of the Philippine Common-
wealth brought one step closer to conclusion a mode of colonial gover-
nance considered so unprecedented in generosity that President William
McKinley hoped that Filipinos would “look back with gratitude to the
day when Destiny placed their land under the beneficent guidance of the
people of the United States.”55
The American experiment had proposed to tame colonialism through
their constitutional democracy. Instead, the government preserved by the
1935 Philippine Constitution demonstrates that the endeavor rendered
and justified in constitutional language and operations the power and
control necessary to civilize and govern a subject population. As we have
seen, colonial constitutionalism drew on and extended to the Islands
analogous precedents regulating relationships between members, whether
individuals or territories, with non-members, beginning with the creation
of unincorporated territorial status. Exposing the American constitutional
tradition’s understated dimension of power, making audible the relative
minor to its major key, it was this tacit corollary of a power unhindered,
rather than limited, by restraints that became the default rule of the
Philippine constitutional order.
Conclusion
On the eve of World War II, High Commissioner Francis B. Sayre,

the Philippine Commonwealth’s top American official, warned Presi-
dent Franklin D. Roosevelt that a series of controversial measures sub-
mitted to him for approval by Commonwealth President Manuel L.
Quezon “points in the direction of a dictatorial or oligarchical control of
government rather than of democracy.” He alluded in particular to a
constitutional amendment that threatened to weaken the unicameral
National Assembly by creating a nationally elected Senate beholden to
central (and therefore presidential), rather than provincial, patronage. But
Sayre was equally alarmed by another constitutional amendment, duly
ratified in a national plebiscite, extending the Commonwealth president’s
term from six to eight years, which he feared would “create a precedent
of exceeding danger to democracy.” Finally, Sayre sought Roosevelt’s
permission to pressure Quezon to withdraw a third measure, an Emer-
gency Powers Bill granting the Commonwealth extraordinary authority in
view of the looming war with Japan. Not wishing to embarrass Quezon,
however, Roosevelt only permitted the High Commissioner to caution
Quezon with respect to his use of these powers.1
Quezon’s proposals were the culmination of efforts to consolidate
presidential control over the Commonwealth government and, through
it, Philippine politics, society, and its economy. In turn, historian Alfred
McCoy attributes Quezon’s institutional domination to his skill in refin-
ing “a system of patronage that he had developed as Senate President
since 1917.”2
The origins, conduct, and impact of Philippine-style strongman pol-
itics have long captivated both scholarly and popular interest, but its
259
260 Conclusion
ideological and institutional underpinnings have received far less

attention. Hence, this book excavates and deconstructs precisely this
invisible matrix of Philippine totalitarianism’s ideational and structural
foundations. Quezon’s political hegemony rested on the Commonwealth
president’s powers over what Justice George A. Malcolm describes as the
Commonwealth Government’s government’s “sprawling and immense
bureaucracy.” Apart from the cabinet, resurrected colonial fixtures sur-
rounded the presidential office, among them, the Council of State, the
Council of Leaders, the Civil Service, and various consultative groups
and technical assistants. From the Insular Government’s six executive
departments beginning in 1916, the Commonwealth government mush-
roomed to eighteen, expanding with them the number of undersecretaries,
bureaus, divisions, boards, commissions, and offices. Having been “per-
mitted to grow to abnormal proportions,”3 the Commonwealth gov-
ernment’s multiple and myriad offices provided vast opportunities for
graft.
Control over the Commonwealth’s machinery, McCoy observes, gave
Quezon a “monopoly over the disposition of both executive and legisla-
tive patronage.” This enabled him to reduce “opposition parties to impo-
tence” and to block “the rise of any rivals within the ruling Nacional-
ista Party.”4 Consequently, he ruled the unicameral National Assembly
through a pliable speaker and “dramatized his personal guidance of
legislation by setting up offices in the Legislative Building.”5 Like the Gov-
ernment of the Philippine Islands, the Commonwealth was empowered
to regulate all spheres of activity; thus, Quezon’s institutional hegemony,
the force of his personality, and his “judicious use of government regula-
tory and financial agencies” also located him “at a junction of interaction
between the State and the private corporate sector.” In exchange for gov-
ernment contracts, loans, or regulatory intervention, Quezon’s “coterie of
the country’s richest American, Spanish, and Filipino businessmen” made
large donations to his Nacionalista faction and made “generous gifts to
the President himself.”6 Because the Philippine presidency could freely
dispense government funds and in general enjoyed unequalled access to
government-controlled resources, political scientist Mark R. Thompson
describes this office as “the top prize of the political game” that was
Philippine electoral politics.7
Perhaps equally alluring were the trappings of office, which Malcolm
claims “Quezon dearly loved.” Along with his high-handed exercise of
constitutional prerogatives, Quezon affected an imperial look for his
Conclusion 261
inauguration, draping a “red shoulder sash and three foreign decora-

tions,” which included “a medal attached to his left lapel and two blaz-
ing badges pinned on the right side of his coat above the hip.” Malcolm
recalls that Quezon gratified “a desire to see the world at the expense
of the taxpayers,” but that “[c]uriously, the Filipino people were rather
proud of the impression their effulgent leader was making in foreign lands
and rarely complained of his prodigality.”8
What Quezon refined and his successors elaborated, Ferdinand E.
Marcos later perfected. Like his Commonwealth antecedent, Marcos
exploited his control over government largesse and authority, bolstering
allies and crippling opposition, in order to win elections and enrich him-
self and his supporters. Unlike his predecessors, however, Marcos utilized
the Philippine government’s full arsenal when he declared martial law,
for this allowed him to eliminate political dissent, to impose a new con-
stitution that sanctioned his dictatorship, to neutralize interdepartmental
checks, and to nationalize the country’s major economic sectors, notably
sugar and coconut, and assign their management to family members and
cronies. Even after lifting martial law in 1980, Marcos continued to enjoy
extraordinary powers through the notorious Amendment Six. Ratified at
one of many rigged plebiscites, this innovation authorized the president
to “issue the necessary decrees, orders, or letters of instruction, which
shall form part of the law of the land” whenever he determined that a
“grave emergency or a threat or imminence thereof” existed or whenever
the legislature “fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action.” This effectively
conferred legislative authority on the president, expanding the executive’s
colonial era emergency powers and effectively institutionalizing and con-
stitutionalizing one-man rule.9
Marcos and his wife Imelda used government money and foreign loans
to lavishly indulge their pretenses to nobility, even divinity. Raymond
Bonner recounts that when Marcos was inaugurated anew as president
after the end of martial law, “a 1,000-voice male chorus boomed out
the ‘Hallelujah Chorus’ from Handel’s Messiah,” singing “And he shall
reign forever and ever” to the incredulous ears of diplomats, who were
unprepared “for something quite so brazen.” Now legendary are Imelda
Marcos’s incessant globetrotting on the nationalized Philippine Airlines
that became her personal charter, as are her prodigious purchases of
designer apparel, jewelry, art, and prime real estate – all financed by
suitcases of cash withdrawn from the Philippine National Bank’s New
262 Conclusion
York branch.10 But perhaps no single image symbolizes their government-

subsidized profligacy quite so succinctly and eloquently as the enduring
image of Imelda’s 5,000 pairs of shoes.
Conventional wisdom has tended to regard the imperious Filipino
president, and the 1935 Philippine Constitution that created him,
as an expression of the Filipino’s Hispanicized oriental nature. But
Quezon’s and Marcos’s ostentation and heavy-handed wielding of presi-
dential prerogatives were neither characteristically oriental nor peculiarly
Filipino. Garbed in doge’s robes, Governor-General William Howard
Taft converted Malacañang Palace into a Doge’s Palace along the Pasig
River as he hosted a Venetian carnival at the official residence of Philip-
pine chief executives past and present.11 Moreover, by mirroring the
American Governor-General of the organic acts, the 1935 Philippine
Constitution’s president carried over understandings shaped by the way
American Governors-General, most particularly W. Cameron Forbes and
Leonard Wood, had performed the executive’s functions and defined its
role in Philippine society. In this sense, the imperial Filipino president
merely stepped into the shoes of the constitutional emperor that was
the American-Governor General who personified US sovereignty over the
Islands.
The Philippine Commonwealth and the Philippine government that
succeeded it essentially replicated the Insular Government and preserved
a constitutional tradition produced by Americans and Filipinos, who
implemented American liberal constitutional principles under colonial
rule and determined thereby what it meant for the Islands to be ruled
by law. And it is striking how much of this colonial constitutional expe-
rience was kept by Filipino framers. Like the British North American
colonial assemblies, the Insular Legislature had championed the rights of
the Filipino people against their American rulers, but Filipino framers did
not mimic the new state governments, which honored the achievements of
colonial assemblies by concentrating power in legislatures and emasculat-
ing the British-controlled magisterial executive and judicial branches.12
Rather than create a strong legislature by institutionalizing the Insular
Legislature’s parliamentary responses to a colonial presidential model,
Filipino framers not only left practically intact the colonial configura-
tion of power, but further strengthened the chief executive within this
inherited scheme.
Why Filipinos retained the colonial design perhaps reflects how
Americans and Filipinos saw this as the “right” arrangement. There
was a limit to which the Insular Legislature could heed the colonial
Conclusion 263
assemblies’ example as preserved by early state governments. Malcolm’s

Board of Control opinion cited those precedents negatively, stating cryp-
tically, “the mistakes of state governments need not be repeated here.”13
Indeed, the dominant Whiggish narrative taught that the turbulent years
bridging the American Revolution and the 1787 Philadelphia Conven-
tion had shown legislatures to be as despotic as governors. Thus, what
mattered was not so much which branch of government enjoyed power,
but that no one branch monopolized power. These experiences shaped
American understandings of separation of powers, which McKinley’s
Instructions considered one of the “certain great principles of govern-
ment” that was “essential to the rule of law and the maintenance of
individual freedom.”14
The problem was that reality and rhetoric were misaligned. The Insu-
lar Government’s internal makeup resembled that of the British North
American royal administrations, which assumed that ultimate control
was lodged in a distant foreign power. Justifying this imperial configu-
ration, however, was a set of principles that underlay a relatively more
balanced internal institutional design crafted at the 1787 Philadelphia
Convention. Uprooting American separation of powers and Bill of Rights
doctrines from their contemporary institutional context in the US main-
land and infusing them into the Philippine colonial institutional frame-
work conditioned their operation and fixed Filipino understandings of
their meanings. Perhaps their sense that these constitutional principles,
as hardwired into the Insular Government’s design by organic acts and
colonial practice, were fundamental to and inextricable from the Amer-
ican system of government accounts for Filipino framers’ reluctance to
tamper with the colonial scheme. Symptomatic of their reticence was
their retention of devices like automatic appropriations, which remains
part of the 1987 Philippine Constitution’s articles on the legislature.15
Intended to preclude the Insular Legislature from holding the Insular
Government hostage by refusing to pass appropriations bills, this device
bore lessons learned from the colonial assemblies’ successful attempts to
control colonial finances. During American rule, this provision deprived
the Philippine Assembly of an important weapon in the colonial assem-
blies’ legislative arsenal in its battles against Governor-General Forbes.
Stripped of its colonial roots, however, automatic appropriations are
today understood as a measure of administrative convenience. The colo-
nial experience seems to have taught Filipino elites that their problems
with the colonial constitutional order had less to do with its design, but
more with who was in control. In other words, because they assumed the
264 Conclusion
structure to be basically “sound,” then all would be well if (the right kind
of) Filipinos were in charge.
In American minds, however, Filipino control was precisely to blame
for the deterioration of Insular Government efficiency during the Harrison
administration. The same has been said of post-independence Philippine
politics, for scholars studying the authoritarian regimes of Quezon and
Marcos have reinforced this impression through their preoccupation with
maneuverings by Philippine political players to capture various political
offices, especially the presidency, and their exploitative use of govern-
ment access to stay in power. But they neglect to explain why they had so
much access to begin with and how this facilitated their machinations,16
thus appearing to take for granted the propriety of such arrangements.
McCoy, for example, recounts that Quezon neutralized the power of
provincial elites when he increased “his direct control over local pol-
itics by the creation of chartered cities whose mayors and councilors
became executive appointees.”17 What this account overlooks, however,
was that the prerogative to charter cities belonged to the Insular Gov-
ernment and was used by American colonial officials to insulate the
cities of Manila and Baguio from local influence, because these two cities
were of greatest importance to, and most heavily populated by, Ameri-
cans. Thus, this potential for undermining local power bases was already
vested in the central government and, by extension, in the officials who
led it. Both American colonial officials and Quezon chartered cities for
similar reasons, and that Americans chartered only two cities while
Quezon established ten seems a difference only in degree.
Similarly, Marcos’s emergency powers under both the 1935 Consti-
tution and the infamous Amendment Six can be directly traced back to
the American colonial period. The language of these provisions repro-
duces portions of Section 21 of the Jones Law, which authorized the
Governor-General to call out the armed forces, to suspend habeas cor-
pus, or to declare martial law when necessary to quell violent unrest. Even
before these emergency powers were formally granted to the Governor-
General by the Jones Law, they had already been clearly entrusted to the
chief executive by the nature of his office from the earliest days of the
American occupation and were therefore unequivocally executive in
nature. Their origin is quite unlike the emergency authority created by the
US Constitution, which subsumes the militia and the power to suspend the
privilege of the writ of habeas corpus under the Article I enumeration of
congressional powers, effectively dividing these powers between the exec-
utive and legislative branches. More ambiguously defining the nature of
these powers as neither being fully executive or fully legislative,18 the US
Conclusion 265
Constitution thereby created an important role for Congress by empow-

ering it to check, at least on paper, the manner by which the president
enforced these provisions.
Hence, for Philippine Commissioner Charles Burke Elliott to attribute
the ills of American colonial government in the Philippines and, by
extension, the legacy of colonial republican institutions, to the Filipinos’
Spanish culture and Latin mental processes seems an exercise in denial.
Remarkably, denial has persisted to the present century. When asked by
PBS’s Jim Lehrer in his January 14, 2009, exit interview to explain what
mistakes the Bush administration committed in the course of its Iraq
adventure, Vice-President Richard Cheney identified as the most serious
error their assumption “that the Iraqis would be able to bounce back fairly
quickly once Saddam was gone or the new government established and
step up and take major responsibilities for governing Iraq.” That is, the
mistake was in underestimating “the extent to which the Iraqi people had
been beaten down by Saddam Hussein,” which had been “greater than I
anticipated.”19 Cheney’s twenty-first-century analysis of Iraqi shortcom-
ings echoes beliefs held by American colonial careerists about Filipinos
at the turn of the twentieth century. In taking pains to demonstrate how
colonial text and practice laid the foundation for the constitutionalism
of the independent Philippine republic, this book argues that the fault
lay, not entirely in Filipino selves, but equally in the interplay among the
structures that undergird Philippine politics, the dynamic channeled by
the colonial constitutional configuration, and the ideological justifications
for the system’s design and mode of operation.
Ultimately, the problems are rooted in America’s well-intentioned yet
perhaps wrong-headed efforts to reconcile the irreconcilable: to tame
colonialism with liberalism by providing sovereignty’s trappings without
its title. As we have seen, American colonial policymakers accomplished
this exceptional feat by severing the principles of the American demo-
cratic and liberal constitutional tradition, not only from the institutional
arrangements that qualified their application, but more fundamentally,
from the community of the governed whose consent must be its foun-
dation and source of legitimacy. But because the control necessary to
maintain order and ensure the success of colonial aims often proved
incompatible with the degree of consent and participation necessary to
create the illusion of legitimacy, the fiction of exceptional imperialism
strained under the weight of its own contradiction. This strain laid bare
the true locus of sovereign authority even as it gave rise to a political
practice that swathed it in a shimmering diaphanous rhetoric of rights
and popular consent.
266 Conclusion
The British had tried to warn their Anglo-Saxon brethren across

the Atlantic that their experiment in exceptional colonialism was ill-
advised. Burned by the experience of the Indian Mutiny, British liberal
imperialists foreswore their earlier desire to make Englishmen out of Indi-
ans and resigned themselves to perpetually excluding Indian culture from
Britain’s liberal tradition. But for an America so heavily invested in being
exceptional from the Old World, this exclusionary move was unsatisfac-
tory, and reconciling colonialism within its liberal constitutional tradition
seemed the only option consistent with the national character. The irony
is that America’s inclusionary liberal empire ultimately proved just as
despotic as Britain’s exclusionary model.
Moreover, the attempt to chasten colonialism by realizing it through
the principles and practices of American liberal constitutionalism per-
versely altered the discourse itself. Employing American liberal constitu-
tionalism for colonial aims revealed the indeterminacy of its rules and
limits and unbridled its latent potential for tyranny. The experience of
constitutional imperialism in the Philippine Islands, like America’s earlier
encounters with Native Americans and African American slavery, was
the sort of revelation that could rupture the national narrative and unset-
tle the national psyche. It was a traumatic moment with the potential to
remake the national personality in ways that perhaps were too difficult
to accept, much less assess, at the end of American colonial rule in the
Islands. Hence, the continuing collective exercise in denial on multiple
levels of American society – personal, official, academic.
Nonetheless, this colonial legacy transformed both American constitu-
tional discourse and the American national identity as it was embodied in
the nation’s formal constitutional texts, seared in the notions and habits
of American colonial officials who reproduced their programs in the US
mainland and overseas, and embedded in the genetic fiber of policies
and institutions that seeded similar democracy and development projects
worldwide. Notwithstanding the absence of formal American control,
these contemporary reproductions of American empire have repeatedly
resurrected the ghosts of their imperial past, ghosts that will continue to
haunt those who inhabit its reconstructed ruins, until their disconcerting
contradictions are finally confronted, exorcised, and laid to rest.
Notes
Introduction
1. Joaquin G. Bernas, A Historical and Juridical Study of the Philippine Bill of
Rights (Quezon City: Ateneo de Manila University Press, 1971), 19.
2. When asked along with Francis Fukuyama, Max Boot, and Joseph Nye in
August 2007 which US war provided the closest analogy to the war in
Iraq, Professor Ronald Steel cited the Philippine-American War partly for
the above-mentioned reasons. Robert Siegel, “Scanning History for Analo-
gies to Iraq War,” All Things Considered, National Public Radio, August 22,
2007.
3. William P. Alford, “Exporting the ‘Pursuit of Happiness,’” review of Aiding
Democracy Abroad: The Learning Curve, by Thomas Carothers, Harvard
Law Review 113:7 (2000): 1685.
4. Ibid.
5. See, for example, Emily S. Rosenberg, Spreading the American Dream: Ameri-
can Economic and Cultural Expansion, 1890–1945 (Canada: Harper Collins,
Ltd. 1982); and Victor Heiser, An American Doctor’s Odyssey: Adventures
in Forty-Five Countries (New York: W. W. Norton & Company, Inc. 1936).
6. See, generally, Paul D. Carrington, Spreading America’s Word: Stories of Its
Lawyer-Missionaries (New York: Twelve Tables Press, 2005); David Sanger,
“Bush Cites Philippines as Model in Rebuilding Iraq,” New York Times,
October 19, 2003, 1.
7. Cecilia Muñoz Palma, The Mirror of My Soul: Selected Decisions, Opinions,
Speeches, and Writings (Manila: Supreme Court Printing Services, 2001),
209, quoting from her opinion in In the Matter of the Petition for Habeas
Corpus of Jose W. Diokno, Carmen I. Diokno v. Juan Ponce Enrile, et al.,
G.R. L-35539, September 17, 1974.
8. George Arthur Malcolm, American Colonial Careerist: Half a Century of
Official Life and Personal Experience in the Philippines and Puerto Rico
(Boston: Christopher Publishing, 1957), 127, quoting a letter by General
Douglas MacArthur released in 1950.
267
268 Notes to Pages 3–6
9. Ibid., 122, 127.

10. Portia L. Reyes, “Pantayong Pananaw and Bagong Kasaysayan in the New
Filipino Historiography: A History of Filipino Historiography as an His-
tory of Ideas” (Ph.D. dissertation, Universitat Bremen, 2000), 47–9, 280–1.
American academic historians specializing in the Philippines included Emma
Blair, James Harvey Robinson, and Austin Craig. Among generation Filipino
academic historians were Leandro Fernandez, Conrado Benitez, and Encar-
nacion Alzona; among the second generation were Nicolas Zafra, Gregorio
F. Zaide, and Eufronio Alip.
11. Ibid., 47, 233–79. The “politician-historians” include national leaders Pedro
Paterno, Isabelo de los Reyes, Trinidad H. Pardo de Tavera, and Teodoro M.
Kalaw.
12. See Teodoro A. Agoncillo, Malolos: The Crisis of the Republic (Quezon
City: University of the Philippines Press, 1960); Renato Constantino, The
Philippines: A Past Revisited (Quezon City: Tala Publishing Services, 1975).
13. Reynaldo Clemena Ileto, Pasyon and Revolution: Popular Movements in the
Philippines, 1840–1910 (Quezon City: Ateneo de Manila University Press,
1997). More recently exemplifying this cultural approach is Filomeno Aguilar,
Jr., Clash of Spirits: The History and Power of Sugar Planter Hegemony
on a Visayan Island (Honolulu: University of Hawai’i Press, 1998). Reyes,
“Pantayong Pananaw,” 455–81, 547–57, explains that whether empirical or
discursive, this “history from below” dominated nationalist historiography
in the 1980s, but subsequently splintered into two rival groups, one that
continues to enlist foreign frameworks and terms to convey their nationalist
message and another that uses indigenous categories, languages, and struc-
tures to construct Filipino-centered narratives that minimizes colonialism’s
influence on Philippine history.
14. Duncan Kennedy, “The Stakes of Law, or Hale and Foucault!” Legal Studies
Forum XV: 4 (1991): 327–65; Douglass C. North, “Institutions, Institutional
Change, and Economic Performance,” The Political Economy of Institutions
and Decisions (Cambridge: Cambridge University Press, 1990); Douglass C.
North, Structure and Change in Economic History (New York: W. W. Norton
& Co., 1981); Michel Foucault, Discipline and Punish: The Birth of the
Prison, trans. Alan Sheridan, 1st American ed. 1978 (New York: Vintage
Books, 1995); Michel Foucault, The History of Sexuality: An Introduction,
trans. Robert Hurley, 1st American ed. 1978, vol. 1, 2 vols. (New York:
Vintage Books, 1991).
15. Christine A. Desan, “Writing Constitutional History Beyond the Institu-
tional/Ideological Divide,” Law and History Review, 16:2 (1998): 391–5.
Because there are many ways to divide, label, and parcel out a world, oblig-
ing a community to privilege one set of actors and schemes over all others
requires constant justification. Constitutional construction thus involves two
elements, which Desan identifies as “the making of a regime of relations that
is tangible and concrete” and “the vetting of that new and official collective.”
16. Alfred W. McCoy, An Anarchy of Families: State and Family in the
Philippines (Quezon City: Ateneo de Manila University Press, 1994); Ruby
Notes to Pages 6–10 269
R. Paredes, ed. Philippine Colonial Democracy (Quezon City: Ateneo de

Manila University Press, 1989).
17. See Ileto, Pasyon and Revolution; Cesar Adib Majul, The Political and Con-
stitutional Ideas of the Philippine Revolution (Quezon City: University of the
Philippines Press, 1967).
18. Per its Web site (http://phil-lawsocietyreview.upd.edu.ph), the Philippine Law
and Society Review (PLSR)’s aims to publish “manuscripts that articulate the
intersection between law and other disciplines, such as history, philosophy,
economics, anthropology, sociology, gender studies, psychology, literature,
and politics.”
19. See Ignacio Villamor, “The Development of Justice of the Peace Courts in the
Philippines,” Philippine Law Journal 7:9 (1928): 398–404; Roberto Regala,
“The Development of Public Utility Regulation in the Philippines,” Philip-
pine Law Journal 12:7 (1933): 463–80; Lorenzo U. Padilla, “The History
of Penal Law,” Ateneo Law Journal 39:2 (1995): 58–120; Enrique M. Fer-
nando, Introduction to Philippine Legal History (PCF Publishing Co. 1950);
Hilarion U. Jarencio, Philippine Legal History (Manila: Philaw Publishing
Co. 1953).
20. See Joaquin G. Bernas, Philippine Bill of Rights; Enrique M. Fernando, “Social
and Economic Rights: Security and Property and Guaranties of Due Process,
Philippine Law Journal 25:4 (1950): 575–97; Ruben F. Balane, The Spanish
Antecedents of the Philippine Civil Code (Quezon City: U. P. Law Center,
1989).
21. Gwen de Vera, “History and the Generation of Philippine Supreme Court
Decisional Rules,” Philippine Law Journal 80:1 (2006): 26–52.
22. Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship
(Chicago: University of Chicago Press, 1999), 9.
23. Morton J. Horwitz, The Transformation of American Law, 1870–1960 (New
York: Oxford University Press, 1992), 9–24; Duncan Kennedy, The Rise and
Fall of Classical Legal Thought (Washington. DC: Beard Books, 1975).
24. William M. Wiecek, The Lost World of Classical Legal Thought: Law
and Ideology in America, 1886–1937 (Oxford: Oxford University Press,
1998), 3.
25. Gordon S. Wood, The Creation of the American Republic, 1776–1787
(Chapel Hill: University of North Carolina Press, 1969; repr., New York:
W. W. Norton & Company, Inc., 1993), 562. Citations from Norton edition.
26. Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century
British Liberal Thought (Chicago: University of Chicago Press, 1999), 49.
27. Gerald L. Neuman, “Constitution and Individual Rights in the Territories,”
in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the
Constitution, ed., Christina Duffy Burnett and Burke Marshall (Durham:
Duke University Press, 2001); Kal Raustiala, Does the Constitution Follow the
Flag? The Evolution of Territoriality in American Law (New York: Oxford
University Press, 2009).
28. Mehta, Liberalism and Empire, 79.
29. Korematsu v. U.S., 323 U.S. 214, 246 (1944).
30. Charles Burke Elliott, The Philippines to the End of the Commission Govern-
ment: A Study in Tropical Democracy (Indianapolis: Bobbs Merrill Company,
1917), Preface ii.
31. Maximo M. Kalaw, Self-Government in the Philippines (New York: Century,
1919), 21.
32. See, generally, Bernard Cohn, Colonialism and its Forms of Knowledge:
The British in India, Princeton Studies in Culture/Power/History (Princeton:
Princeton University Press, 1996); David Streckfuss, “Law of Lese Majeste
in Thailand,” Comparative Studies in Society and History 37:3 (1995): 445–
75; Daniel S. Lev, “Colonial Law and the Genesis of the Indonesian State,”
Indonesia 40 (1985): 57–74; Peter Burns, The Leiden Legacy: Concepts of
Law in Indonesia (Leiden: KITLV Press, 2004).
33. Julian Go, “Introduction: Global Perspectives on the US Colonial State in
the Philippines,” in The American Colonial State in the Philippines: Global
Perspectives, ed. Julian Go and Anne L. Foster, American Encounters/Global
Interactions (Durham: Duke University Press, 2003), 13. For example, Peter
W. Stanley, A Nation in the Making: The Philippines and the United States,
1899–1921 (Cambridge, MA: Harvard University Press, 1974) argued that
American aspirations to democratize the cacique-dominated Filipino society
were compromised by the need to collaborate with the same local elites whose
supremacy they wished to weaken.
34. Alfred W. McCoy, Francisco Scarano, and Courtney Johnson, “On the Tropic
of Cancer: Transitions and Transformations in the US Imperial State,” in
Alfred W. McCoy and Francisco Scarano, eds. Colonial Crucible: Empire
in the Making of the Modern American State (Madison: University of
Wisconsin Press, 2009), 10.
35. Julian Go, “Introduction,” Go and Foster, American Colonial State in the
Philippines, 15–16.
36. Amy Kaplan, “‘Left Alone with America’: The Absence of Empire in the
Study of American Culture,” Cultures of United States Imperialism, ed. Amy
Kaplan and Donald E. Pease (Durham: Duke University Press, 1993), s11;
Amy Kaplan, The Anarchy of Empire in the Making of US Culture (Cam-
bridge: Harvard University Press, 2002); Ann Laura Stoler, ed. Haunted by
Empire: Geographies of Intimacy in North American History (Durham: Duke
37. Christina Duffy Burnett and Burke Marshall, ed. Foreign in a Domestic Sense:
Puerto Rico, American Expansion, and the Constitution (Durham: Duke
38. Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (Prince-
ton: Princeton University Press, 2000).
39. Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in
the Southern Royal Colonies, 1689–1776 (New York: W. W. Norton &
Company, Inc., 1972); William J. Novak, The People’s Welfare: Law and
Regulation in Nineteenth-Century America (Chapel Hill: University of North
Carolina Press, 1996); Horwitz, Transformation 2.
40. David Kennedy and William W. Fisher III, The Canon of American Legal
Thought (Princeton: Princeton University Press, 2006), 456.
41. Katharina Pistor, Philip Wellons, and Jeffrey Sachs, The Role of Law and
Legal Institutions in Asian Economic Development, 1960–1995 (New York:
Oxford University Press, 1999); Richard Posner, “Creating a Legal Frame-
work for Economic Development,” World Bank Research Observer 13, no.
1 (1998): 1–11; Frederick Schauer, “The Politics and Incentives of Legal
Transplantation,” Center for International Development (Harvard Univer-
sity: Frederick Schauer and the President and Fellows of Harvard College,
2000), CID Working Paper No. 44, Law and Development Paper No. 2;
Edward L. Glaser and Andrei Shleifer, “Legal Origins,” Harvard Institute
for Economic Research (Harvard University: 2001), Discussion Paper No.
1920.
42. David M. Trubek and Marc Galanter, “Scholars in Self-Estrangement: Some
Reflections on the Crisis in Law and Development Studies in the United States,
Wisconsin Law Review 1974, no. 4 (1974): 1062–1103; David Kennedy,
“Laws and Development” in Contemplating Complexity: Law and Develop-
ment in the 21st Century, ed. Amanda Perry and John Hatchard (London:
Cavendish Publishing, 2003); John K. M. Ohnesorge, “The Rule of Law,
Economic Development, and the Developmental Studies of North Asia,” in
Law and Development in East and Southeast Asia, ed. Christopher Antons
(London: Routledge, 2003), 91–130.
Chapter 1
1. James Rusling, “Interview with President William McKinley,” The Christian
Advocate, January 22, 1903: 17, reprinted in Daniel Schirmer and Rosskamm
Shalom, eds., The Philippines Reader: A History of Colonialism, Neocolo-
nialism, Dictatorship, and Resistance (Boston: South End Press, 1987), 22–3.
2. See Renato Constantino, The Making of a Filipino: A Story of Philippine Colo-
nial Politics (Quezon City: Malaya Books, Inc., 1969); Teodoro A. Agoncillo
and Milagros C. Guerrero, The History of the Filipino People (Quezon City:
R. P. Garcia Publishing, 1982).
3. See historiographical review in Julian Go, Patterns of Empire: The British
and American Empires, 1688 to the Present (New York: Cambridge Uni-
versity Press, 2011), 14–17. Go notes that while earlier traditional accounts
have denied that America was ever an empire, two strains of revisionism have
acknowledged the imperial character of American expansion. But whereas
“critical revisionists,” represented by William Appleman Williams, charac-
terized it as informal and thus different, “neo-revisionists” or “liberal excep-
tionalists,” which include Niall Fergusson, link its uniqueness to its liberal
and benign nature.
4. Ibid., 83–93; Thomas Bender, A Nation Among Nations: America’s Place in
World History (New York: Hill and Wang, 2006).
5. Frank Hindman Golay, Face of Empire: United States-Philippine Relations,
1898–1946 (Quezon City: Ateneo de Manila University Press, 1997; repr.
1998), 14, 30.
6. Walter LaFeber, The American Search for Opportunity 1865–1913, vol. 2
of The Cambridge History of American Foreign Relations, ed. Warren I.
Cohen (Cambridge: Cambridge University Press, 1993), 129–49, 134, quot-

ing Henry Adams, The Education of Henry Adams (Boston: Houghton
Mifflin, 1930), 423.
7. Alexander Hamilton, James Madison, and John Jay, 1789, The Federalist
Papers, eds. Clinton L. Rossiter and Charles R. Kessler, introduction and
notes, 1999 ed. (New York: Mentor, 1999), 41.
8. Ibid., 49.
9. Ibid., 46.
10. Ibid., 41. This connection between Federalist 10 and expansion was also
drawn in William Appleman Williams, The Tragedy of American Diplomacy,
1972 ed. (New York: W. W. Norton & Co., 1959), 22.
11. Ibid., 47.
12. Charles A. Conant, “The Economic Basis of Imperialism,” North American
Review, September 1898: 326.
13. A. Lawrence Lowell, “The Colonial Expansion of the United States,” Atlantic
Monthly, February 1899: 148.
14. George Herbert Burns, “A Century of Anglo-Saxon Expansion,” Atlantic
Monthly, April 1897: 536.
15. LaFeber, American Search for Opportunity, 21–44, 103–28. Walter La Feber,
The New American Empire: An Interpretation of American Expansion, 1860–
1898, 1998 ed. (Ithaca: Cornell University Press, 1998), 64, explaining that
while the belief that the frontier had closed proved false, given how historians
had “demonstrated that a larger number of original and final homestead
entries were registered after 1900 than during the previous three hundred
years,” it was doubtless that it formed “one important part of the rationale
for an expansive foreign policy in the 1890s.”
16. La Feber, New Empire, 72–80, 80–5, 63–8, analyzing the intellectual envi-
ronment of the late 1890s through the works of Brooks Adams and Josiah
Strong.
17. Lowell, “Colonial Expansion of the United States,” 147.
18. Golay, Face of Empire, 64, quoting New York Times, June 21, 1900: 3.
19. William Jennings Bryan, “America’s Mission,” in William Jennings Bryan,
et. al., Republic or Empire: The Philippine Question (Chicago: The Inde-
pendence Company, 1899), 37: “The forcible annexation of the Philippine
Islands is not necessary to make the United States a world power. For over
ten decades our nation has been a world-power.” Stephen M. White, “The
Passing of Constitutional Restraints,” in Bryan, Republic or Empire?, 197–9,
193: “If mere trade is the objective, there is no difficulty in providing for it
with any government which may be established.”
20. Richard Franklin Bensel, Sectionalism and American Political Development:
1880–1980 (Madison: University of Wisconsin Press, 1984), 92. In the ante-
bellum period, however, Walter Johnson, River of Dark Dreams: Slavery and
Empire in the Cotton Kingdom (Cambridge, MA: Harvard University Press,
2013), 321, notes that slaveholders harbored dreams of a Southern empire
that would stretch from the Mississippi River to a “free” Cuba detached
from Spain. Through Cuba, they would extend slavery into the Americas,
“gather in, distribute, and multiply the wealth of [the] Pacific, the Atlantic,
the Mississippi, and the Amazon in a vortex of unimaginable riches” through
the control it gave them over shipping routes in the Gulf and the Atlantic
Ocean, and thus “ensure the precedence of American destiny over European
history on the North American continent.”
21. Bartholomew H. Sparrow, The Insular Cases and the Emergence of American
Empire, Landmark Law Cases & American Society (Lawrence: University
Press of Kansas, 2006) 70–8, notes that the Sugar Trust had been the single
largest contributor to McKinley’s presidential campaign given his leading role
in passing the McKinley Tariff to their benefit. Also allied to the Sugar Trust
were Root, who had been counsel to the American Sugar Refining Company,
and important Republican senators.
22. Christopher Lasch, “The Anti-Imperialists, the Philippines, and the Inequality
of Man,” Journal of Southern History 24:3 (1958): 326–7.
23. Andrew Carnegie, “Should the United States Expand?,” in Bryan, Republic
of Empire, 97.
24. Golay, Face of Empire, 5–7.
25. LaFeber, New Empire, 91.
26. George Franklin Edmunds, “What Will They Do to Us?,” in Bryan, Republic
or Empire?, 251.
27. William Jennings Bryan, “Will It Pay?,” in Bryan, Republic or Empire?, 64;
Carl Schurz, “American Imperialism,” in Republic and Empire, 348.
28. Ruel V. Pagunsan, “British Consular Reports on Filipino Anti-Colonial Strug-
gles and Philippine-British Relations, 1896–1902,” Philippine Social Science
Review, 62, no. 1 (2010): 131–142.
29. Golay, Face of Empire, 7.
30. William Jennings Bryan, “Imperialism,” in Speeches of William Jennings
Bryan, ed. William Jennings Bryan and Mary Baird Bryan (New York: Funk
& Wagnalls Company, 1909), 2:44.
31. James Bradley Thayer, “Our New Possessions,” Harvard Law Review 12,
No. 6 (1899): 475.
32. Marion Butler, “A Government Based on Force,” in Bryan, Republic or
Empire?, 257.
33. William Jennings Bryan, “First Speech Against Imperialism,” in Bryan,
Republic or Empire?, 12; Bryan, “America’s Mission,” 35.
34. William Jennings Bryan, “The Savannah Interview” in Bryan, Republic or
Empire?, 14.
35. Paul A. Kramer, “Empires, Exceptions, and Anglo-Saxons: Race and Rule
between the British and US Empires,” in The American Colonial State in
the Philippines: Global Perspectives, ed. Julian Go and Anne Foster, Ameri-
can Encounters/Global Interactions (Durham: Duke University Press, 2003),
48–9.
36. Richard Hofstadter, Social Darwinism in American Thought (Boston: Beacon
Press, 1992), 173–4.
37. Kramer, “Empires, Exceptions,” 48–9.
38. Bryan, “America’s Mission,” 35.
39. Kramer, “Empires, Exceptions,” 65–6, quoting Bryan, “America’s Mission,”

38.
40. Senator Henry M. Teller of Colorado, speaking on December 20, 1898, 55th
Cong., 3rd sess., Congressional Record 326–7. Henry M. Teller, “A Nation’s
Power,” in Bryan, Republic or Empire?, 233–7.
41. Ibid.
42. Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship
(Chicago: University of Chicago Press, 1999), 9.
43. George Arthur Malcolm, The Constitutional Law of the Philippine Islands,
Together with Studies in the Field of Comparative Constitutional Law
(Rochester, NY: The Lawyers Co-operative Publishing Company, 1920),
319.
44. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History,
1400–1900 (Cambridge: Cambridge University Press, 2002), 167–209.
45. Ibid., 153–61; Alice Conklin, A Mission to Civilize: The Republican Idea of
Empire in France and West Africa, 1895–1930 (Stanford: Stanford University
Press, 2000).
46. See Manuel T. Chan, The Audiencia and the Legal System in the Philippines,
1583–1900 (Manila: Progressive Printing Palace, 1998).
47. See Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Leiden:
KITLV Press, 2004).
48. Jonathan K. Ocko and David Gilmartin, “State, Sovereignty, and the People:
A Comparison of the ‘Rule of Law’ in China and India,” Journal of Asian
Studies 68, No. 1 (2009): 62.
49. Barbara D. Metcalf and Thomas R. Metcalf, A Concise History of India
(Cambridge: Cambridge University Press, 2002), 57.
50. Benton, Law and Colonial Cultures, 151.
51. See Senate Document No. 62, Pt. 2, 55th Congress, 3rd sess., 396, General
Emilio Aguinaldo to General Thomas M. Anderson, July 24, 1898, in Maximo
M. Kalaw, The Development of Philippine Politics (1872–1920) (Manila:
Oriental Commercial Co., Inc., 1926), 109.
52. J. B. Weaver, “Against Imperialism,” in Bryan, Republic or Empire?, 104.
53. Ibid., 105.
54. Senate, Report of a Commission Appointed to Investigate Affairs in the Philip-
pine Islands, 56th Cong., 1st Sess., 1900, S. Doc. 138, 92 [hereinafter Schur-
man Report]. The Schurman Commission included men knowledgeable or
experienced in Asian affairs, such as Admiral Dewey, General Elwell S. Otis,
who was the military governor, Dean C. Worcester, a University of Michi-
gan zoologist with research experience in the Islands, and Charles Denby, an
Indiana Democrat and a minister to China for fourteen years.
55. US Department of War, Instructions of the President to the Commission,
January 20, 1899, in Exhibit II, Schurman Report.
56. Bernard Cohn, Colonialism and Its Forms of Knowledge: The British in India
(Princeton: Princeton University Press, 1996) examines the following modali-
ties: historiography, observation and travel, survey, enumeration, museology,
and surveillance.
57. Philip C. Jessup, Elihu Root (New York: Dodd, Mead, and Company, Inc.,
1938), 1:138, 158–82.
58. Sparrow, The Insular Cases, 73. After the New York Court of Appeals inval-
idated the trust deed through which the American Sugar Refining Company
controlled other sugar refining corporations, Root changed his client’s char-
ter and reorganized it in New Jersey, which had less restrictive corporate
rules.
59. Jessup, Root, 1:354.
60. Other members were Worcester, Luke E. Wright, a former Confederate Army
officer and attorney general of Tennessee, Henry C. Ide, a Vermont native
and recent member of the US Court of Samoa, and Professor Bernard Moses,
a historian of Spanish America at the University of California.
61. Elihu Root, “The United States and the Philippines in 1900: Address of the
Secretary of War, at Canton, Ohio, October 24, 1900,” in The Military and
Colonial Policy of the United States: Addresses and Reports, ed. Robert Bacon
and James Brown Scott (Cambridge, MA: Harvard University Press, 1916;
repr. Whitefish, MT: Kessinger Publishing, 2007), 42.
British Liberal Thought (Chicago: University of Chicago Press, 1999), 52,
57.
63. Barbara Young Welke, Law and the Borders of Belonging in the Long Nine-
teenth Century (New York: Cambridge University Press, 2010).
64. Susan K. Harris, God’s Arbiters: Americans and the Philippines, 1898–1902
(Oxford: Oxford University Press, 2011).
65. Bender, A Nation Among Nations, 4.
66. Schurman Report, 11–16.
67. This included the Muslim inhabitants of the southern island of Mindanao
and the Igorot tribes in northern Luzon, which the Spaniards had never
fully subjugated and which Americans would subject to military rule until
1914.
68. Root, “US and Philippines in 1900,” 39.
69. Antony Anghie, Imperialism, Sovereignty, and the Making of International
Law (Cambridge: Cambridge University Press, 2004), 38.
70. The Report identified the Visayans, Tagalogs, Bicolanos, Ilocanos, Pangansi-
nense, and Pampangans.
71. Schurman Report, 17–18, 31–41.
72. Michael Cullinane, Ilustrado Politics: Filipino Elite Responses to American
Rule, 1898–1908 (Quezon City: Ateneo de Manila University Press, 2003),
18–22, 331.
73. Elihu Root, “The Principles of Colonial Policy: Porto Rico, Cuba, and the
Philippines,” in Bacon and Scott, Military and Colonial Policy, 163–4.
75. Root, “Colonial Policy,” 164.
76. Charles A. Towne, “Lest We Forget,” in Republic or Empire?, 315. Note
that in Schurz, “American Imperialism,” 329–63, Carl Schurz’s speech to the
University of Chicago contained all of the anti-imperialist prescriptions.
77. Augustus O. Bacon, “Independence for the Philippines,” in Bryan, Republic

or Empire?, 523.
78. Butler, “A Government Based on Force,” 256. William Jennings Bryan,
“Jackson Day Speech at Chicago,” in Bryan, Republic or Empire?, 24.
79. Charles Francis Adams, “What Policy the United States Should Pursue,” in
Bryan, Republic or Empire?, 215.
80. Benjamin R. Tillman, “Are We To Spread the Christian Religion with the
Bayonet Point, as Mahomet Spread Islamism with a Scimiter?” in Bryan,
Republic or Empire?, 123. Senator Benjamin R. Tillman, speaking on Febru-
ary 7, 1899, 55th Cong., 3rd Sess., 1532.
81. William Jennings Bryan, “Ratify the Treaty, Declare the Nation’s Policy,”
in Bryan, Republic or Empire?, 53.
82. See Thomas A. Bailey, “Was the Election of 1900 a Mandate on Imperial-
ism?,” Mississippi Valley Historical Review 24, No. 1 (1937).
85. Julian Go, American Empire and the Politics of Meaning: Political Cultures
in the Philippines and Puerto Rico During US Colonialism (Durham: Duke
University Press, 2008), 28–9. La Feber, American Search for Opportunity,
189.
86. Schurman Report, 18, 31–41.
87. Ibid., 81.
88. Golay, Face of Empire, 45, citing Congressional Record, 55th Cong., 3rd.
Sess., 2807–12.
89. Metcalf and Metcalf, Concise History of India, 76. When the British trans-
ferred capital to India for the first time in order to construct a railway in
1858, they still siphoned profits home. See William Jennings Bryan, “British
Rule in India,” in Bryan, Republic or Empire?, 68–9.
90. W. Cameron Forbes, The Philippine Islands (Boston: Houghton Mifflin,
1938), 2:392.
91. Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain,
Britain and France c. 1500–1800 (New Haven: Yale University Press, 1995).
92. Anghie, Imperialism, 97.
93. Ibid., 69.
94. Ibid.
95. Metcalf and Metcalf, Concise History of India, 81, 93–8.
96. Anghie, Imperialism, 97.
97. Paul D. Carrington, Spreading America’s Word: Stories of Its Lawyer-
Missionaries (New York: Twelve Table Press, 2005), 97.
98. See Anghie, Imperialism, 115–95.
99. US Philippine Commission, Report of the United States Philippine Com-
mission to the Secretary of War for the Period from December 1,
1900, to October 15, 1901 (Washington DC, 1901), 20 [hereinafter Taft
Report].
101. Metcalf and Metcalf, Concise History of India, 81, 103–4.
103. Francis Burton Harrison, The Corner-Stone of Independence: A Narrative

of Seven Years (New York: The Century Co., 1922), 332.
104. Ibid., 333.
105. Ibid., 324.
Chapter 2
Secretary of War, at Canton, Ohio, October 24, 1900,” in The Military
and Colonial Policy of the United States: Addresses and Reports, ed. Robert
Bacon and James Brown Scott (Cambridge, MA: Harvard University Press,
1916; repr. Whitefish, MT: Kessinger Publishing, 2007), 44.
2. Glenn Anthony May, “Civic Ritual and Political Reality: Municipal Elec-
tions in the Late Nineteenth Century,” in Philippine Colonial Democracy,
ed. Ruby R. Paredes (Quezon City: Ateneo de Manila University, 1989).
Similarly, native representation in British India under the English East
India Company up to the 1917 Morley-Minto Reforms did not involve
self-government, for British colonists had generally found India ill-suited
for their own representative institutions. Thus, native participation in the
Raj consisted of performing government services, primarily through dis-
trict collectors who served in multiple capacities under the English East
India Company (EIC) and later in the lower rungs of the Indian Civil Ser-
vice; of consultation in councils after the reforms instituted after the 1857
Indian Mutiny; and of indirect rule in the princely states throughout British
rule. See Barbara D. Metcalf and Thomas R. Metcalf, A Concise History
of India, Cambridge Concise Histories (Cambridge: Cambridge University
Press, 2002), 56–202.
3. Peter W. Stanley, A Nation in the Making: The Philippines and the United
States, 1899–1921 (Cambridge, MA: Harvard University Press, 1974), 34–
5.
4. Benedict O’G. Anderson, “Cacique Democracy in the Philippines,” in The
Spectre of Comparisons: Nationalism, Southeast Asia, and the World, ed.
Benedict O’G. Anderson (London: Verson, 1998), 198.
5. Ibid.
6. Cesar Adib Majul, The Political and Constitutional Ideas of the Philippine
Revolution (Quezon City: University of the Philippines Press, 1967; repr.
1996), 2–3, 209–10.
7. John N. Schumacher, The Propaganda Movement 1880–1895, rev. ed.
(Quezon City: Ateneo de Manila University Press, 1997).
8. Stanley, Nation in the Making, 36.
9. John N. Schumacher, “The ‘Propagandists’ Reconstruction of the Philippine
Past,” in Perceptions of the Past in Southeast Asia, ed. Anthony Reid and
David Marr (Singapore: Heinemann Educational Books for the Asian Studies
Association of Australia, 1979).
10. See Teodoro A. Agoncillo, The Revolt of the Masses: The Story of Bonifacio
and the Katipunan (Quezon City: University of the Philippines Press, 1956);
Renato Constantino, The Philippines: A Past Revisited (Quezon City: Tala
Publishing Services, 1975).

Rule, 1898–1908 (Quezon City: Ateneo de Manila University Press, 18–22,
331.
12. Ibid., 19–20, 22.
13. Root, “US and Philippines,” 36.
14. Daniel R. Williams, The Odyssey of the Philippine Commission (Chicago: A.
C. McClurg & Co., 1913), 70.
15. Benedict O’G. Anderson, Imagined Communities: Reflections on the Origin
and Spread of Nationalism, 1991 ed. (London: Verso, 1991).
16. Maximo M. Kalaw, The Development of Philippine Politics (1870–1920)
(Manila: Oriental Commercial Co., Inc. 1926), 176, quoting Aguinaldo’s
letter to General Otis, January 23, 1899, Otis’s Report of 1899,
84.
pine Islands, 56th Cong., 1st Sess., 1900, S. Doc. 138, 84–85 [hereinafter
Schurman Report]. The sociologist Julian Go interprets responsiveness as
demonstrating how American colonial policies were shaped more by demands
on the periphery than by values held in the metropole. Julian Go, Patterns of
Empire: The British and American Empires, 1688 to the Present (New York:
Cambridge University Press, 2011), 93, 102.
1998), 29, quoting Wesley Merritt, “Merritt to the People of the Philip-
pines,” August 14, 1898, Senate, “Communications between the Executive
Departments of the Government and Aguinaldo, etc.,” 56th Cong., 1st Sess.,
Sen. Doc. 208. (1899–1900), vol. 86–7.
20. Ibid., citing William McKinley to the Secretary of War, “Communications
between the Executive Departments of the Government and Aguinaldo,” vol.
82–3.
21. Ibid., 48.
22. Schurman Report, 4.
23. Ibid., 9, 176.
24. Ibid., 6, 85.
25. Ibid., 171, Exhibit I, The Preliminary Report of the Commission, November
2, 1899.
28. See P. G. Cain and A. G. Hopkins, British Imperialism, 1688–2000, 2002 ed.
(Harlow, England: Pearson Education Limited, 2002), in India, 284–302, in
Africa, 305–8.
29. See Schurman Report, 189–228: Exhibit IV: The constitution of the so-called
Philippine Republic (otherwise known as the Malolos Constitution), of Jan-
uary 21, 1899; Exhibit V: A proposed constitution for the Island of Negros
(drafted by some of the leading citizens, with the aid and supervision of
Colonel Smith); Exhibit VI: A draft constitution prepared for the Commission
by certain eminent Filipinos; and Exhibit VII: Paterno’s scheme of government
(scheme of autonomous government proposed to Spain June 19, 1898, prior

to American occupation of Manila).
30. Ibid., 84–5.
31. Filipino nationalist historians would later ascribe a more prominent role
to the revolution’s militant founder, Andres Bonifacio. Unable to com-
plete formal schooling, the self-educated Bonifacio worked in foreign trad-
ing firms in Manila. See Agoncillo, Revolt of the Masses; Agoncillo,
Crisis of the Republic; Constantino, Making of a Filipino; Constantino, Past
Revisited.
32. Schumacher, Propagandists’ Reconstruction, 280.
34. Correspondence between William Howard Taft and Elihu Root, July 14,
1900, and October 10, 1900, William Howard Taft Papers, Series 21, Special
Correspondence, Vol. 2, Copies of Letters between Taft and Elihu Root,
Relating to the Philippine Situation, 1900–1, by permission of the University
of North Carolina at Chapel Hill Libraries.
36. Ibid., 124.
38. See Henry F. Pringle, William Howard Taft: The Life and Times (Newton,
CT: American Political Biography Press, 1939), 173–8.
39. Carl Lande, Leaders, Factions, and Parties: The Structure of Philippine Poli-
tics, Monograph Series, Southeast Asia Studies (New Haven: Yale University
Press, 1964), 6:9.
40. Patricio N. Abinales and Donna Amoroso, State and Society in the Philippines,
State and Society in East Asia (Lanham: Rowman & Littlefield Publishers, Inc.
2005), 22.
41. Ruby R. Paredes, ed. Philippine Colonial Democracy (Quezon City: Ateneo
de Manila University Press, 1989).
42. Williams, Odyssey of the Philippine Commission, 145–64.
43. Kalaw, Development of Philippine Politics, 258–95.
44. Cullinane, Ilustrado Politics, 74–83.
45. Kalaw, Development of Philippine Politics, 266–9.
46. Act No. 292, The Sedition Law, P.L. 1 (1901): 685.
47. Alfred W. McCoy, Policing America’s Empire: The US, the Philippines, and
the Rise of the Surveillance State (Madison: University of Wisconsin Press,
2009), 66–74.
48. Instructions of the President to the Philippine Commission, April 7, 1900
(Washington DC, 1900) [hereinafter McKinley’s Instructions].
49. Glenn Anthony May, Social Engineering in the Philippines: The Aims, Exe-
cution, and Impact of American Colonial Policy, 1900–1913 (Westport, CT:
Greenwood Press, 1980), 41–56.
50. George Arthur Malcolm, The Government of the Philippine Islands: Its
Development and Fundamentals (Rochester, NY: Lawyers Co-Operative Pub-
lishing Company, 1916), 197; Elihu Root, “The Beginnings of the Civil
Government: Extract from the Report of the Secretary of War for 1900,”
in Bacon and Scott, Military and Colonial Policy, 241–2.
51. Williams, Odyssey of the Philippine Commission, 145–64.

52. Schurman Report, 81–2: Other defects included the following: “(4) a perni-
cious system of taxation; (5) a plethora of officials who lived on in the country
and by their very numbers obstructed, like a circumlocution office, the pub-
lic business they professed to transact; (6) division of minor responsibilities
through the establishment of rival boards and offices; (7) the costliness of
the system of corruption and the corruption it bred; (8) confusion between
the functions of the state and the functions of the church and the religious
orders.”
53. Ibid., 45. On page 70, the Report notes that even in the provincial councils,
“men of education are excluded unless they happen to pay the $50 annual
land tax.”
54. §6, Act No. 2, The Municipal Government Code, P.L. 1 (1901): 110.
55. Cullinane, Ilustrado Politics, 150. Property and literacy requirements
remained almost until the end the American colonial period, as universal
suffrage would be introduced only in 1938 during the Philippine Common-
wealth.
56. John A. Larkin, Sugar and the Origins of Modern Philippine Society (Berkeley:
University of California Press, 1993), 31.
57. Ibid.
58. Lande, Leaders, Factions, and Parties, 10–12.
59. Act No. 173, An Act Restoring the Provinces of Batangas, Cebu, and Bohol
to the Executive Control of the Military Governor, P.L. 1 (1901): 325.
60. Act No. 322, An Act Restoring the Province of Cebu to the executive control
of the Civil Governor, P.L. 1 (1901): 733.
61. For example, Act No. 332, An Act Declaring the Barrios of Mapandan,
Apaya, Luyan, Balolin, Amanwawak, and Nilimbot, Now a Part of the
Municipality of Magaldan, Province of Pangasinan, to be a New Munici-
pality under the Name of Mapandan, P.L. 1 (1902): 766.
62. Act No. 253, An Act Creating a Bureau of Non-Christian Tribes for the Philip-
pine Islands, P.L. 1 (1901): 633. For scholarship on the American administra-
tion of non-Christian areas, see Paul A. Kramer, The Blood of Government:
Race, Empire, the United States and the Philippines (Chapel Hill: University
of North Carolina, 2006); Patricio Abinales, Making Mindanao: Cotabato
and Davao in the Formation of the Philippine Nation-State (Quezon City:
Ateneo de Manila University Press, 2000).
63. “Non-Christian” denoted not so much religion, but a populace’s level of civ-
ilization, which the Taft Report described as “savage” or “half-civilized.”
See US Philippine Commission, Report of the United States Philippine Com-
mission to the Secretary of War for the Period from December 1, 1900, to
October 15, 1901 (Washington DC, 1901), 1:38 [hereinafter Taft Report].
64. Act No. 391, “An Act Authorizing Provincial Boards to Appropriate Provin-
cial Funds for Use in the Suppression of Epidemic Disease,” 1 P.L. (1902):
957.
65. Act No. 482, An Act Authorizing Provincial Boards to Appropriate Provincial
Funds for the Purchase of Draft Animals for Breeding Purposes, 2 P.L. (1902):
31.
66. Golay, Face of Empire, 112–17. The breakdown was as follows: 15 percent
to the municipal governments, 10 percent to the provincial governments,
and 75 percent to the central government. Hence, special acts providing for
loans and appropriations to provincial and municipal governments prolifer-
ated. In 1906, 40 percent of local revenues were distributed to local gov-
ernment units, and 60 percent to the central government. By 1909, 60 per-
cent of local revenues went to local government units and 40 percent to
the central government, but by then other sources of revenues had become
available, and these revenues shifted to insular government, while those
accruing to provincial and municipal governments remained fixed at 1909
levels.
67. Eliodoro Robles, The Philippines in the Nineteenth Century (Quezon City:
Malaya Books, 1969), 105, 199.
68. Golay, Face of Empire, 120, enumerating “[o]ther networks of insular offi-
cials, predominantly American, that linked the elective municipal govern-
ments to the insular government in the early years of American rule. Provin-
cial supervisors oversaw the construction of roads and bridges and other
public improvements, provincial superintendents of schools were responsible
for maintaining national standards in local schools, internal revenue agents
enforced the collection of taxes, and Constabulary inspectors supervised the
municipal police. The emphasis given to tutelage of municipal officials in
the early reports of the commission confirms the good faith with which
McKinley’s Instructions were carried out.”
69. Taft Report, 1:19.
71. E.g., Presidents McKinley and Theodore Roosevelt, Secretary of War Root. In
Manila, Governor-General Taft and numerous department and bureau chiefs,
such as Victor Heiser (Public Health), Gifford Pinchot (Forestry), and George
Malcolm (Associate Supreme Court Justice).
72. Stephen Skowronek, Building a New American State: The Expansion of
National Administrative Capacity, 1877–1920 (Cambridge: Cambridge Uni-
versity Press, 1982; repr. 1997), 24–7. Along with Great Britain, Canada,
Prussia, and France, the United States had begun to professionalize its admin-
istrative bureaucracy in the 1800s. However, Skowronek clarifies that while
civil service development in other Western powers represented the consoli-
dation of an evolving governmental order, the American civil service reform
movement was a “countercurrent” in state development, because the estab-
lishment of a professional civil service “posed a direct challenge to the govern-
mental order” in which government positions became the spoils of electoral
victory that winning parties disbursed to reward their supporters. Conse-
quently, “the leading proponents of civil service reform in America had to
organize the opposition to the centerpiece of the established mode of govern-
mental operations: the constituent party machine.”
73. Schurman Report, 81–2 and 112.
76. Robles, Philippines in the Nineteenth Century, 185–218.
77. Lauren Benton, A Search for Sovereignty: Law and Geography in Euro-
pean Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010),
214.
78. Act No. 222, An Act Providing for the Organization of the Department
of Interior, of Commerce and Police, of Finance and Justice, and of Public
Instruction, P.L. 1 (1901): 556.
79. Skowronek, Building a New American State, 24–31.
80. David P. Barrows, “The Governor-General of the Philippines under Spain
and the United States,” American Historical Review 21 (1916): 288,
301.
1938) 2:167.
82. W. S. Washburn, W. Leon Pepperman, and Felipe Buencamino, “Report of
the Civil Service Board to the Civil Governor, August 23, 1901,” in Appendix
E of Taft Report, 300.
83. Bonifacio S. Salamanca, The Filipino Reaction to American Rule, 1901–1913
(Quezon City: New Day Publishers, 1984), 59–60.
84. Golay, Face of Empire, 59–60, 122.
85. Forbes, Philippine Islands, 2:167.
86. Kalaw, Development of Philippine Politics, 272, quoting Governor General
William Howard Taft, speaking for Philippine Organic Act, before the Senate
Committee on the Philippines, 57th Cong., 1st Sess., Sen. Doc 331, 67.
87. Cullinane, Ilustrado Politics, 68–72.
88. See Ruby R. Paredes, “The Origins of National Politics: Taft and the Partido
Federal,” in Philippine Colonial Democracy, ed. Ruby R. Paredes (Quezon
City: Ateneo de Manila University Press, 1989).
89. McKinley’s Instructions, 8.
90. Ibid.
91. Gary Willis, Explaining America: The Federalist (New York: Penguin Books,
2001), 116–25. See also David F. Epstein, The Political Theory of the Fed-
eralist (Chicago: University of Chicago Press, 1984). Epstein points out that
James Madison’s concept of separation of powers in The Federalist encom-
passes all three senses, but Madison conceived of it mostly as a minimum
requirement of legitimacy.
92. “Though the powers of the military occupant are absolute and supreme and
immediately operate upon the political condition of the inhabitants . . . ”
from Executive Order, May 19,1898, The American Presidency Project
(online), University of California, John T. Woolley and Gerhard Peters, Santa
Barbara, CA: University of California (hosted), Gerhard Peters (database),
www.presidency.ucsb.edu/ws/index.php?pid=69292.
93. Elihu Root, “The Civil Government of the Philippines: Extract from the
Report of the Secretary of War for 1901,” in Bacon and Scott, Military and
Colonial Policy, 252.
94. Executive Order No. 21, June 21, 1901, The American Presidency Project
(online), www.presidency.ucsb.edu/ws/index.php?pid=69292.
1938), 1:300.
96. Philippine Autonomy Act, Public Law 64–240, United States Statutes at Large
39 (1916): 545, Chapter 416, §12 and 13.
W. W. Norton & Company, Inc., 1993), 425–9.
98. See generally Robles, Philippines in the Nineteenth Century.
Chapter 3
Secretary of War, at Canton, Ohio, October 24, 1900,” in The Military and
Colonial Policy of the United States: Addresses and Reports, ed. Robert Bacon
and James Brown Scott (Cambridge, MA: Harvard University Press, 1916;
repr. Whitefish, MT: Kessinger Publishing, 2007), 34, 47.
2. William Wiecek, The Lost World of Classical Legal Thought: Law and Ide-
ology in America, 1886–1937 (Oxford: Oxford University, 1998), 98: “In
Dicey’s formulation, the rule of law required the supremacy of law over arbi-
trary power, the subjection of all people, including rulers, to the authority of
‘ordinary tribunals’; and the derivation of public from private law (not the
other way around).”
1938), 1:345.
4. Elihu Root, “The Principles of Colonial Policy: Porto Rico, Cuba, and the
Philippines,” in Bacon and Scott, Military and Colonial Policy, 161.
6. Christina Duffy Burnett and Burke Marshall, “Between the Foreign and
Domestic: The Doctrine of Territorial Incorporation, Invented and Rein-
vented,” in Foreign in a Domestic Sense: Puerto Rico, American Expansion,
and the Constitution, ed. Christina Duffy Burnett and Burke Marshall, Amer-
ican Encounters/Global Interactions (Durham: Duke University Press, 2001),
4–5.
Schurman Report].
1998), 38.
11. Senator George G. Vest of Missouri, December 12, 1898, 55th Cong., 3rd
Sess., Congressional Record, 93.
12. Drafted by Secretary Root, this device imposed an amendment to the Cuban
Constitution to secure for the United States the right to intervene in Cuban
affairs even after its withdrawal from the Islands.
13. See Senator Orville H. Platt of Connecticut, December 19, 1898, 55th Cong.,
3rd Sess., Congressional Record, 287–8.
14. William V. Allen, “Necessary and Natural Territorial Expansion,” in William

Jennings Bryan, et al., Republic or Empire?: The Philippine Question
(Chicago: The Independence Company, 1899), 291–2.
15. The US Supreme Court had earlier discussed the notion of inherent sovereign
power in a foreign relations context via the “Chinese Exclusion cases,” which
shaped later jurisprudence defining the nature of authority of the Government
of the Philippine Islands. See The Chinese Exclusion Case: Chae Chan Ping
v. U.S., 130 U.S. 581 (1889); Fong Yue Ting v. U.S., 149 U.S. 698 (1893);
Nishimura Ekiu v. U.S., 142 U.S. 651 (1892).
York: Oxford University Press, 1992), 9.
17. Owen M. Fiss, Troubled Beginnings of the Modern State, 1888–1910, vol.
8 of History of the United States Supreme Court, ed., Stanley N. Katz, 2nd
edition (Toronto: Cambridge University Press, 2006), 46.
18. Horwitz, Transformation 2, 11.
W. W. Norton & Company, Inc., 1993), 562.
21. Wiecek, Lost World, 12–13.
22. Fiss, Troubled Beginnings, 176–7.
23. Ibid., 158–9, 176–8.
24. Duffy Burnett and Marshall, “Between Foreign and Domestic,” 2, 7.
25. Downes v. Bidwell, 182 U.S. 244 (1901).
26. Duffy Burnett and Marshall, “Between Foreign and Domestic,” 2: “The Insu-
lar Cases, decided between 1901 and 1922, invented and developed the idea
of unincorporated territorial status in order to enable the United States to
acquire and govern its new ‘possessions’ without promising them either state-
hood or independence.” First articulated by Justice White in his Downes
concurrence, the “incorporation theory” became the Insular Doctrine after
receiving the Court’s majority support in Rasmussen v. U.S., 197 U.S. 516
(1905) and unanimous endorsement twenty years later in Balzac v. Porto
Rico, 258 U.S. 298 (1922).
27. Fiss, Troubled Beginnings, 234–35, explains that President McKinley ini-
tially lobbied for duty-free treatment, but protectionists forced a compromise,
resulting in the lower tariff. This lower tariff was also “justified in part as a
way to help Puerto Rico recover from a severe hurricane that hit the island in
August 1899, killing some three thousand people and destroying most of the
island’s coffee crop.”
28. C. C. Langdell, “The Status of Our New Territories,” Harvard Law Review
12, No. 6 (1899): 365–92; James Bradley Thayer, “Our New Posses-
sions,” Harvard Law Review 12, No. 6 (1899): 464–85; Carman Randolph,
“Constitutional Aspects of Annexation,” Harvard Law Review 12, No. 5
(1898): 291–315; Simeon E. Baldwin, “The Constitutional Questions Incident
to the Acquisition and Government by the United States of Island Territory,”
Harvard Law Review 12, No. 6 (1899): 393–416; A. Lawrence Lowell, “The
Status of Our New Possessions – A Third View,” Harvard Law Review 13,
No. 3 (1899): 155–76.
29. Randolph, “Constitutional Aspects,” 304.

30. Thayer, “New Possessions,” 473.
31. Downes v. Bidwell, 251, 376, 372, 292, 346.
33. Senator Platt, 12/19/1898, Congressional Record, 287.
34. American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828); Mormon
Church v. U.S., 136 U.S. 1 (1890).
35. Downes v. Bidwell, 300, 345, and 369.
37. Dred Scott v. John F. A. Sandford, 60 U.S. (19 How.) 393, 446 (1857).
39. Senator George F. Hoar of Massachusetts, January 9, 1899, 55th Cong., 3rd
Sess., Congressional Record, 495.
40. Downes v. Bidwell, 372–3 and 380.
42. Randolph, “Constitutional Aspects,” 294–5, quoting Shively v. Bowbly, 152
U.S. 1 (1894) and National Bank v. County of Yankton, 101 U.S. 129 (1879).
44. Senator Platt, 12/19/1898, Congressional Record, 293–4, citing Mormon
Church v. U.S., 136 U.S. 1(1890).
45. Baldwin, “Constitutional Questions,” 401–4; Randolph, “Constitutional
Aspects,” 296–7.
46. George F. Hoar, “Our Government as It Was Intended,” in Bryan, Republic
or Empire?, 166.
47. Downes v. Bidwell, 372, 380.
48. Lowell, “New Possessions Status,” 156.
49. Ibid., 172.
50. Downes v. Bidwell, 323.
51. Ibid., 341–2.
52. Ibid.
53. Ibid.
54. Lowell, “New Possessions Status,” 176.
55. Justice Gray’s brief dissent agreed with Justice White’s arguments and added:
“If Congress is not ready to construct a complete government for the con-
quered territory, it may establish a temporary government, which is not sub-
ject to all the restrictions in the Constitution.” Downes v. Bidwell, 346.
56. Ibid., 276–7.
57. Ibid., 292.
58. Ibid., 283, 290–1.
60. Fiss, Troubled Beginnings, 243.
62. Ibid., 292.
63. Ibid., 304–5.
64. Ibid.
65. Langdell, “New Territories,” 390–2.
66. Downes v. Bidwell, 311–12.
67. Duffy Burnett and Marshall, “Between Foreign and Domestic,” 13.

69. Ibid., 1:348.
70. U.S. v. Bull, 15 Phil. 7, 27 (1910), rejected as an unconstitutional violation of
the US Constitution’s Interstate Commerce Clause a Philippine Commission
statute regulating the transportation of livestock between foreign ports and
insular ports.
71. See, for example, Benner v. Porter, 50 U.S. (9 How.) 235 (1850); National
Bank v. County of Yankton, 101 U.S. 129 (1879); Murphy v. Ramsey, 114
U.S 15 (1885); Mormon Church v. U.S., 136 U.S. 1 (1890); Boyd v. Nebraska,
143 U.S. 135 (1892); Simms v. Simms, 175 U.S. 162 (1899).
(Rochester, NY: The Lawyers Co-operative Publishing Company, 1920), 179.
73. Root, “Colonial Policy,” 168–9.
74. See Cesar L. Villanueva, “Revisiting the Philosophical Underpinnings of
Philippine Commercial Laws,” Ateneo Law Journal, 46, No. 3 (2001): 735–
44.
75. This approach was consistent with US practice dating back to at least the
1819 cession of Florida to the United States. Chief Justice Marshall clarified
in American Insurance Co. v. Canter, 26 U.S (1 Pet.) 511, 542 (1828) that the
same act that transferred Florida also transferred “the allegiance of those who
remain in it; and the law, which may be denominated political, is necessarily
changed, although that which regulates the intercourse and general conduct
of individuals remains in force until altered by the newly created power of the
state.”
76. Alzua v. Johnson, 21 Phil. 308, 331–2 (1912).
77. Kepner v. U.S., 195 U.S. 100, 124 (1904).
78. Paul D. Carrington, Spreading America’s Word: Stories of Its Lawyer-
Missionaries (New York: Twelve Tables Press, 2005).
(Boston: Christopher Publishing, 1957), 10, 23, 83.
80. Vicente J. Francisco, “Justice George A. Malcolm,” Lawyer’s Journal XXV,
No. 2 (1961): 34–35.
81. Ibid.
82. Alejandrino v. Quezon, 46 Phil. 83 (1924); Government of P.I. v. Springer,
50 Phil. 259 (1927); Government of the P.I. v. Gregorio Agoncillo, 50 Phil.
348 (1927).
83. Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919).
84. Smith, Bell & Co. v. Natividad, 40 Phil. 136 (1919).
85. Distinguished alumni of the University of the Philippines College of Law
include four Philippine presidents (Jose P. Laurel, Sr., Elpidio Quirino,
Manuel Roxas, and Ferdinand E. Marcos); fourteen Supreme Court Chief
Justices (Ricardo Paras, Jose Yulo, Jose P. Laurel, Cesar Bengzon, Querube
Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar, Ramon
Aquino, Pedro Yap, Marcelo Fernan, Hilario Davide, Reynato Puno, and-
Maria Lourdes Sereno); and a significant number of senators and membersof
the House of Representatives.
86. Wiecek, Lost World, 95.

87. Ibid. Along with Cooley’s Constitutional Limitations, Wiecek names John
Dillon’s Municipal Corporations and Christopher Tiedeman’s Limitations
of Police Power as the three most influential American legal treatises of legal
classicism.
88. In addition to the preeminent influence of Cooley’s treatise, Malcolm and
fellow Supreme Court colleague Justice Elias Finley Johnson were bound to
Cooley’s legacy as alumni of the University of Michigan Law School, which
Cooley had helped establish and whose Constitutional Law curriculum he
had shaped. Moreover, Justice Johnson, who was the longest-serving Amer-
ican Justice on the Philippine Supreme Court, had also taught law at his
alma mater, and his decisions religiously cited Judge Cooley’s works.
89. Malcolm, Philippine Constitutional Law, vii.
90. Joaquin G. Bernas, S. J., A Historical and Juridical Study of the Philippine
Bill of Rights (Quezon City: Ateneo de Manila University Press, 1971),
19.
91. Malcolm, Philippine Constitutional Law, 154.
92. Ibid., 156.
93. Ibid.
94. Ibid., 131–2; 154, citing Loan Association v. Topeka, 87 U.S. 655
(1875).
95. National Bank v. County of Yankton, 101 U.S. at 133: “Congress may not
only abrogate laws of the territorial legislature, but it may itself legislate
directly for the local government. It may make a void act of the territorial
legislature valid, and a valid act void.”
97. Angara v. Electoral Commission, 63 Phil. 139, 161 (1936), citing 1931
Constitution of the Republic of Spain, Articles 121–123, Title IX.
(Manila: Oriental Commercial Co., Inc., 1926), 134.
99. Act No. 190, Code of Civil Procedure, P.L. 1 (1901): 378. Despite this
provision, Spanish remained the language of the courts throughout the Taft
era.
100. Bonifacio S. Salamanca, The Filipino Reaction to American Rule, 1901–
1913 (Quezon City: New Day Publishers, 1984), 60–1.
101. Reports of the Taft Philippine Commission: Message from the President of
the United States Transmitting a Report of the Secretary of War, Containing
the Reports of the Taft Commission, January 25, 1901 (Washington DC,
1901), 83.
102. Ibid.
103. Salamanca, Filipino Reaction, 61.
105. Act No. 396, § 3, An Act So Amending Act No. 136 Providing for the
Organization of Courts, P.L. 1 (1902): 960. This law was not invalidated
until Borromeo v. Mariano, 41 Phil. 322 (1921).
107. See Province of Tarlac v. Gale, 26 Phil. 338 (1913).
108. Malcolm, American Colonial Careerist, 140.
109. Reynaldo Fajardo, Perfecto V. Fernandez, Mario Guarina III. Irene

Ragodon-Guevara, and David G. Nitafan, The History of the Philippine
Judiciary (Manila: Philippine Judiciary Foundation, 1998), 293.
110. W. Cameron Forbes, Journal: 1904–1946, 1st Series, Vol. 5 (August 8, 1911,
to November 22, 1913), February 12, 1912, 110, Journal, W. Cameron
Forbes Papers, 1900–1946, Cambridge, MA, fMS Am 1365, by permission
of Houghton Library, Harvard University.
notes, 1999 ed. (New York: Mentor, 1999), 433.
Chapter 4
1. US Philippine Commission, Report of the United States Philippine Com-
mission to the Secretary of War for the Period from December 1, 1900, to
October 15, 1901 (Washington DC, 1901), 1: 61 [hereinafter Taft Report].
2. Ibid., 1:21.
3. Senate, Report of a Commission Appointed to Investigate Affairs in the
Philippine Islands, 56th Cong., 1st Sess., 1900, S. Doc. 138, 81 [hereinafter
Schurman Report].
4. Taft Report, 1:19–20.
5. Ibid., 9.
1938), 2:156. See also November 9, 1926, entry, Diaries: July 1, 1924, to
August 8, 1927, Reel No. 3, in The Papers of Leonard Wood, folio 17, 910,
Library of Congress, Washington, DC, in which Wood complained that
Filipino legislatures had “done little of anything of a constructive nature”
throughout a hundred-day session.
7. See Act No. 136, Judicial Organization Act, P.L. 1 (1901): 252; Act No.
140, An Act Defining the Judicial Districts of the Philippine Islands, P.L.
1 (1901): 274; Act No. 190, Code of Civil Procedure, P.L. 1 (1901):
378.
8. Act No. 175, Insular Constabulary Act, P.L. 1 (1901): 326.
9. See Act No. 20, Insular Auditor Act, P.L. 1 (1900): 18; Act No. 222, An
Act Organizing the Executive Departments, P.L. 1 (1901): 556.
10. Act No. 82, Municipal Government Code, P.L. 1 (1901): 110; Act No. 83,
Provincial Government Code P.L. 1 (1901): 142.
11. Taft Report, 1: 9–13.
12. See Act No. 58, An Act Providing for the Establishment of Local Police in
Cities and Towns of the Philippine Islands, P.L. (1900): 75.
the Rise of the Surveillance State (Madison: University of Wisconsin Press,
2009), 15–56.
14. Warwick Anderson, “States of Hygiene: Race, ‘Improvement,’ and Biomed-
ical Citizenship in Australia and Colonial Philippines,” in Haunted by
Empire: Geographies of Intimacy in North American History, ed. Ann Laura
Stoler (Durham: Duke University Press, 2006), 98–103.

16. Ibid., 1:60.
17. Paul A. Kramer, “Empires, Exceptions, and Anglo-Saxons: Race and Rule
between the British and US Empires,” in The American Colonial State in the
Philippines: Global Perspectives, eds. Julian Go and Anne Foster (Durham:
Duke University Press, 2003), 77–8.
18. Greg Bankoff, “Conservation and Colonialism: Gifford Pinchot and the Birth
of Tropical Forestry in the Philippines,” Colonial Crucible: Empire in the
Making of the Modern American State, eds. Alfred W. McCoy and Francisco
Scarano (Madison: University of Wisconsin Press, 2009), 479.
19. Ibid.
20. See generally, McCoy and Scarano, Colonial Crucible.
21. Nicholas P. Cushner, Spain in the Philippines: From Conquest to Revolution,
I.P.C. Monographs, eds. Alfonso de Guzman II and Victor M. Taylor (Quezon
City: Ateneo de Manila University Press, 1971), 129–30.
22. Ibid., 158–85; Benito J. Legarda, Jr., After the Galleons: Foreign Trade, Eco-
nomic Change, and Entrepreneurship in the Nineteenth-Century Philippines
(Quezon City: Ateneo de Manila University Press, 1999), 93–217.
23. Eliodoro Robles, The Philippines in the Nineteenth Century (Quezon City:
Malaya Books, 1969), 185–218.
25. Schurman Report, 189–228: Exhibit IV: The constitution of the so-called
Philippine Republic (otherwise known as the Malolos Constitution), of Jan-
uary 21, 1899; Exhibit V: A proposed constitution for the Island of Negros;
Exhibit VI: A draft constitution prepared for the Commission by certain emi-
nent Filipinos; and Exhibit VII: Paterno’s scheme of government (scheme of
autonomous government proposed to Spain June 19, 1898, prior to American
occupation of Manila).
26. Ibid., 225, Exhibit VI Art. LV§9.
27. Ibid., 225, Exhibit VI Article LV§10.
28. Partha Chatterjee, “The Nation and Its Fragments,” in The Partha Chatterjee
Omnibus (New Delhi: Oxford University Press, 1999), 237.
29. George Arthur Malcolm, The Constitutional Law of the Philippine Islands
245.
30. McCoy, Policing America’s Empire, 99–100. See Act No. 292, Sedition Act,
P.L. 1 (1901): 685; Act No. 518, Bandolerismo Statute, P.L. 2 (1902): 143;
Act No. 781, Reconcentration Act, P.L. 2 (1903): 433.
31. Ibid., 126–58, specifically “Cavite Controversy,” 132–8.
32. Barcelon v. Baker, 5 Phil. 87, 96–8 (1905).
33. Ibid.,117.
34. Ibid., 104–7, citing Martin v. Mott, 2 U.S. (12 Wheat.) (1827). Barcelon
invoked federal and state supreme court decisions and authorities like Jus-
tice Joseph Story, Justice James Kent, John Randolph Tucker, John Norton
Pomeroy, Henry Campbell Black, and Judge Thomas Cooley.
35. In Re: Patterson, 1 Phil. 93, 96–7 (1902).
36. Nishimura Ekiu v. U.S., 142 U.S. 651, 659 (1892).

37. Forbes v. Chuoco Tiaco, 16 Phil. 534 (1910).
38. Ibid., 558.
39. Ekiu v. U.S., 659.
40. The Chinese Exclusion Case: Chae Chan Ping v. U.S., 130 U.S. 581 (1889).
41. Ibid., 600–10.
42. Chuoco Tiaco v. Forbes, 228 U.S. 549, 558 (1913). This relationship likely
explains why Chief Justice Arellano took pains to deny that Act No. 265,
which allowed the Customs Collector to bar entry to agitators, was an immi-
gration law. By extending US immigration statutes, namely the Chinese Exclu-
sion Acts, to the Philippine Islands in 1902, Congress had preempted this
field. The Chief Justice evaded this argument by characterizing the challenged
law as something other than an immigration measure. Interestingly, however,
even though the Chinese Exclusion Acts contemplated deporting Chinese gang
members in Forbes, neither the Philippine nor the US Supreme Court thought
these preemptive congressional laws relevant, much less controlling, since the
right to remain, in Justice Oliver Wendell Holmes’s view, did “not prevail
over a removal as an act of state.”
43. Forbes v. Chuoco Tiaco, 560–8.
44. Ibid., 568–71. Act No. 1986, An Act Confirming the Governor-General’s
Deportation of Certain Persons of Chinese Nationality, P.L. 8 (1910):
24.
45. Chuoco Tiaco v. Forbes, 556. Emphasis supplied.
46. McCoy, Policing America’s Empire, 246–53.
47. In Re McCulloch Dick, 31 Phil. 41, 56 (1918). In the February 16, 1918,
issue of the Free Press, McCulloch Dick published “Know How to Forage,”
an editorial commenting on the plan to incorporate the Philippine National
Guard into the US national forces during World War I that said, “If the men
of the Philippine National Guard can fight like they can steal then the Kaiser
and his legions had better beat it before the boys from the Philippines are sent
‘over there.’”
48. Ibid., 94: “ . . . under American sovereignty, the essentially civil power to
deport aliens as an act of state was originally vested in the first Civil Governor
by virtue of the presidential orders hereinafter cited, affirmed and ratified by
the Congress of the United States; and that it has continued in the office of
the Chief Executive, the Governor-General, ever since, except in so far as his
power has been restricted, limited or controlled by the various acts of the
Philippine Legislature to which reference has already been made.”
50. U.S. v. Toribio, 15 Phil. 85 (1910).
51. Two earlier cases discussed police power, but the doctrine was not pertinent
to either ruling. See Collins v. Wolfe, 5 Phil. 285 (1905) regarding Manila city
courts’ territorial jurisdiction, and U.S. v. Arceo, 3 Phil. 381 (1904), which
involved forcible entry. A contemporaneous case, U.S. v. Ling Su Fan, 10 Phil.
104 (1910), which the US Supreme Court affirmed in Ling Su Fan v. U.S.,
218 U.S 302 (1910), applied due process but set a purely procedural standard
for review that Toribio’s substantive due process approach supplanted.
52. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest

Upon the Legislative Power of the United States of the American Union, 5th
ed. (Boston: Little, Brown, 1883), 707–9.
53. Commonwealth v. Alger, 61 Mass (7 Cush) 53, 85 (1851).
54. Ken De Bevoise, Agents of Apocalypse: Epidemic Disease in the Colonial
Philippines (Quezon City: New Day Publishers, 2002), 159–63.
55. Warwick Anderson, Colonial Pathologies: American Tropical Medicine,
Race, and Hygiene in the Philippines (Durham: Duke University Press), 62.
See also Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought
and Historical Difference (Princeton: Princeton University Press, 2007), 44,
which notes that histories of the modern state “effectively played down . . . the
repression and violence that are as instrumental in the victory of the modern
as is the persuasive power of its rhetorical strategies” and cites the history of
modern medicine as the most visible example of the irony of the “undemo-
cratic foundations of ‘democracy’,” quoting accounts by American doctors
of their experiences eradicating smallpox in India in the 1970s. Anderson
demonstrates that such strategies were deployed in the Philippines seventy
years earlier and likely shaped the approaches used by these American doc-
tors in India.
56. U.S. v. Gomez Jesus, 31 Phil. 218 (1915) and U.S. v. Pompeya, 31 Phil. 245
(1915).
57. U.S. v. Gomez Jesus, 225.
59. U.S. v. Gomez Jesus, 227, and U.S. v. Pompeya, 254.
60. U.S. v. Salaveria, 39 Phil. 102, 108 (1918). Malcolm, Philippine Constitu-
tional Law, 338.
61. Commonwealth v. Alger, 85.
62. Churchill and Tait v. Rafferty, 32 Phil. 581, 605 (1915).
63. Harry N. Scheiber, “Property Rights v. Public Necessity: A Perspective on
Emergency Powers and the Supreme Court,” Journal of the Supreme Court,
28, vol. 3 (2003): 343.
64. Churchill and Tait v. Rafferty, 608.
66. Ibid., 337.
67. U.S. v. Gomez Jesus, 225.
69. William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-
Century America (Chapel Hill: University of North Carolina Press, 1996),
10, 1.
70. U.S. v. Toribio, 92.
71. Commonwealth v. Alger, 91.
72. In Re Patterson, 96–98, quoting Ekiu v. U.S., 660.
73. Fong Yue Ting v. U.S., 149 U.S. 698, 713 (1893).
74. This conclusiveness deprived some of the Forbes petitioners of any
recourse even though their deportation may have been erroneous. Marrying
surveillance and law enforcement, the deportation in Forbes illustrates this
relationship’s potential for dysfunction. McCoy, Policing America’s Empire,

196–9 recounts that Chinese informants fed the Manila police false infor-
mation in order to deport their rival merchants along with legitimate gang
members. However, none of this background appears in the Supreme Court
case’s recital of facts. Rather than appraise the propriety of deportation, the
Court focused instead on finding authority for the deportation order that was
issued and carried out in the Governor-General’s name.
75. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).
76. Severino v. Governor-General, 16 Phil. 366, 401 (1910).
77. Ibid., 392–4, citing Sutherland v. Governor, 29 Mich. 320 (1874). The first
line prevented courts from compelling performance of any kind of official
duty, while the second allowed compulsion of ministerial duties.
78. Ibid., 401.
79. Ibid., 398, citing Sutherland v. Governor, Hawkins v. Governor, 1 Ark. 570
(1839).
80. Severino v. Governor-General, 401–2.
81. E.g., Barcelon v. Baker.
82. See L. S. Moon v. Harrison, 43 Phil. 27 (1922). In this case, the Supreme
Court denied an injunction and damages claim against Governor-General
Harrison for ordering his agents to seize rice that was priced above the max-
imum set by executive orders that he issued pursuant to a law alleged to
be invalid for constituting an improper taking. Because “their acts were
official and discretionary,” the Governor-General and his agents “had a
legal right to assume that the law was valid” until voided by the courts
and were immune from suit since “they were acting for, and represent-
ing, the Government of the Philippine Islands under a law enacted by its
Legislature.”
83. Apart from deportation power in Forbes and McCulloch Dick, pardoning
power was likewise not conferred explicitly on the Governor-General. See
U.S. v. Patricio Guarin, 30 Phil. 85 (1915) and de Leon v. Director of Prisons,
31 Phil. 60 (1915).
84. In Re McCulloch Dick, 111–12. Dissenting in McCulloch Dick, Justice John-
son explained that examining the legality of a person’s detention would not
violate separation of powers because “in pronouncing a statute, or a partic-
ular act of any individual or official in any department of the Government
illegal, the courts are simply interpreting the meaning, force, and application
of the fundamental law of the State.”
85. Punzalan v. Ferriols, 19 Phil. 214, 222 (1911). Emphasis supplied.
87. See, for example, U.S. v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health,
24 Phil. 250 (1913); U.S. v. Salaveria.
88. U.S. v. Ten Yu, 10.
91. U.S. v. Salaveria, 111.
92. Case v. Board of Health, 276–77; Churchill and Tait v. Rafferty, 602; Smith,
Bell & Co. (Ltd.) v. Natividad, 40 Phil 136, 154 (1919).
93. In Case v. Board of Health, 268, it was actually Board of Health Director
officials who determined that Edwin Case’s water closet system in question
was “insanitary and likely to produce disease and discomfort” both to occu-
pants and Manila residents and required him to connect his home to the city’s
new sewage system at his own expense.
94. In Punzalan v. Ferriols, a Batangas municipal president shot a carabao based
on findings by Board of Health veterinary surgeons that the animal was
afflicted with surra.
95. Stephen Skowronek, Building a New American State: The Expansion of
National Administrative Capacity, 1877–1920 (Cambridge: Cambridge Uni-
versity Press, 1982; repr. 1997), 24–7. Citations are to the 1997 edition.
97. See, for example, Punzalan v. Ferriols; Case v. Board of Health; Churchill
and Tait v. Rafferty; Fisher v. Yangco Steamship, 31 Phil. 1 (1915); Alejandro
Mejica v. Public Utility Commission, 49 Phil. 774 (1926).
98. Garry Wills, Explaining America: The Federalist (New York: Penguin Books,
2001), 128.
Chapter 5
States, 1899–1921 (Cambridge, MA: Harvard University Press, 1974),
84.
2. See Barbara Young Welke, Law and the Borders of Belonging in the Long
Nineteenth Century (New York: Cambridge University Press, 2010).
British Liberal Thought (Chicago: University of Chicago Press, 1999), 78–82,
79: “The stronger the claims for a particular intervention being progressive,
or bettering life, the more it has pressed against the existing norms limiting
the use of political power.”
4. Bonifacio S. Salamanca, The Filipino Reaction to American Rule, 1901–1913
(Quezon City: New Day Publishers, 1984), 65.
Schurman Report].
(Washington DC, 1900), 10. [hereinafter McKinley’s Instructions].
7. Stanley, Nation in the Making, 83–84.
8. Antony Anghie, Imperialism, Sovereignty, and the Making of International
Law, Cambridge Studies in International and Comparative Law (Cambridge:
Cambridge University Press, 2004), 162–8.
Race, and Hygiene in the Philippines (Durham: Duke University Press, 2006),
182.
1898–1946 (Quezon City: Ateneo de Manila University Press, 1997, repr.
1998), 122.
11. Salamanca, Filipino Reaction, 65–6. Also established during the first decade
of American rule were intermediate schools in the principal barrios of munici-
palities; at least one secondary school in each province; plus a Normal School,
an Arts and Trade School, a Nautical School, a Nursing School, and the Uni-
versity of the Philippines.
12. US Philippine Commission, Report of the United States Philippine Commis-
sion to the Secretary of War for the Period from December 1, 1900, to
October 15, 1901 (Washington, DC, 1901), 1:20 [hereinafter Taft Report].
13. Salamanca, Filipino Reaction, 60, quoting Taft to Judge Howard Hollister,
May 26, 1901.
14. U.S. v. Toribio, 15 Phil. 95 (1910).
15. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), especially Justice
Stephen Field’s dissent; Lochner v. New York, 198 U.S. 45 (1905); Mugler
v. Kansas, 123 U.S. 623 (1887); Loan Association v. Topeka, 87 U.S. 655
(1875); Munn v. Illinois, 94 U.S. 113 (1877); Railroad Commission Cases,
116 U.S. 307 (1886); Allgeyer v. Louisiana, 165 U.S. 578 (1897).
16. US CONST. Article II, § 10 ¶ 1: “No state shall . . . pass . . . any law impairing
the obligation of contracts . . . ”
18. Joaquin G. Bernas, S. J., A Historical and Juridical Study of the Philippine
Bill of Rights (Quezon City: Ateneo de Manila University Press, 1971), 91–
6. As added proof of the contracts clause’s demise, Bernas cites its omis-
sion from McKinley’s Instructions, despite subsequent inclusion in the Philip-
pine organic acts, and the dearth in contracts clause cases, noting only four:
Clemons v. Nolting, 42 Phil. 702 (1922); Gaspar v. Molina, 5 Phil. 197
(1905); Government of P.I. v. Frank, 13 Phil. 236 (1909); U.S. v. Diaz Conde,
42 Phil. 766 (1922).
19. Ibid., 25. Toribio appears to have broken with the primarily procedural
emphasis in U.S. v. Ling Su Fan, 10 Phil. 104, 112 (1910).
20. Daniel T. Rodgers, Contested Truths: Keywords in American Politics since
Independence (Cambridge, MA: Harvard University Press, 1987), 151.
21. From the 1900s to 1939, the Insular Court used similar public purpose and
“reasonableness” standards for equal protection challenges. Beginning with
People of the Philippines v. Cayat, 68 Phil. 12, 18 (1939), it ruled that reason-
able classifications met equal protection when they (1) rested on substantial
distinctions; (2) were germane to the purpose of law; (3) were not limited to
existing conditions only; and (4) applied equally to all members of the same
class.
23. Bernas, Philippine Bill of Rights, 27–8.
24. Punzalan v. Ferriols, 19 Phil. 214 (1911); Case v. Board of Health, 24 Phil.
250 (1913). See especially Churchill and Tait v. Rafferty, 32 Phil. 581, 618
(1915), where the Supreme Court lauded the far-sightedness of the Philippine
Legislature in heeding the experience of the states and checking the spread
of billboard advertising before they marred the countryside: “We, in this
country, have the benefit of the experience of the people of the United States
and may make our legislation preventive rather than corrective.”
25. William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-
Century America (Chapel Hill: University of North Carolina Press, 1996),
246–7, e.g., Munn v. Illinois, 94 U.S. 113 (1877); Mugler v. Kansas, 123 U.S.
623 (1887); Powell v. Pennsylvania, 127 U.S. 678 (1888); Budd v. New York,
143 U.S. 517 (1892), Lawton v. Steele, 152 U.S. 133 (1894).
26. Smith, Bell & Co. (Ltd.) v. Natividad, 40 Phil. 136 (1919), citing Barbier v.
Connolly, 113 U.S. 27 (1885).
notes, 1999 ed. (New York: Mentor, 1999), 276, Federalist No. 48.
29. Anghie, Imperialism, 311–12.
30. Treaty of Paris Article VIII, ¶ 2 in Appendix E of Maximo M. Kalaw, The
Development of Philippine Politics (1872–1920) (Manila: Oriental Commer-
cial Co., Inc. 1926), 446–51 at 48–9. Salamanca, Filipino Reaction, 128. Only
titled properties owned by religious orders were bought to be resold to cul-
tivators. The US government acquired these “friar lands” from the Catholic
Church to redress grievances against friar landlords that had fueled the Philip-
pine Revolution. Otherwise, Americans strengthened the Spanish system of
landownership.
34. Harry N. Scheiber, “Public Rights and the Rule of Law in American Legal
History,” California Law Review 72, No. 2 (1984): 217, 224. Government
could regulate, even destroy, structures built on public property without pay-
ing just compensation, because any damage suffered by private persons in
the course of a valid police power exercise was damnun absque injuria. Even
private property not susceptible of public use could be regulated – the sic
utere doctrine required private owners to use private property in ways not
harmful to the public. In effect, all real property was subject to the common
good.
35. Munn v. Illinois, 125–6.
37. Salamanca, Filipino Reaction, 129, notes that by 1910 the Court of Land Reg-
istration had granted only 3,902 Torrens titles out of a possible 2,300,000
and attributes the lack of Filipino enthusiasm to the endeavor’s novelty
and to the lowly peasant’s inability to see a correlation between a title
and his annual yield,” while sensing “tax implications of a more accurate
land survey.”
University of California Press, 1993), 66–69.
39. Owen J. Lynch, Jr., “Land Rights, Land Laws, and Land Usurpation: The
Spanish Era,” Philippine Law Journal 63, No. 1 (1988); 82–92.
40. Owen J. Lynch, Jr. “Invisible Peoples and a Hidden Agenda: The Origins of
Contemporary Philippine Land Laws (1900–1913), Philippine Law Journal
63, No. 1 (1988), 249, 250, quoting Schurman Report, 92 as acknowledg-
ing that “a very large percentage of the lands are occupied and claimed
by individuals without any record title whatsoever,” either because they
never secured a record title or titles that were obtained had been lost
“through the vicissitudes of war, the burning of records, and the ravages of
insects.”
41. Salamanca, Filipino Reaction, 130–1. Between 1904 to 1913, only 135 home-
stead patents were issued from 21,968 applications; and only 1,103 applica-
tions were filed for public agricultural lands, of which 200 were approved
and seven, patented.
42. Horwitz, Transformation 2, 3–4.
44. Ibid. At 144, Stanley elaborates: “True development, the sort that would
result in prosperity for the Philippines and mutual benefit for Filipinos and
Americans, could not be had simply by building roads and rectifying legal
codes and the currency. Such acts removed obstacles to development, but a
dynamic element was still needed to stimulate the economy and promote the
effective use of these improved facilities. To the turn-of-the-century mind,
that element was private capital.”
45. Philippine Organic Act, Public Law 57–235, United States Statutes at Large
32 (1902): 691, §15 and 16.
46. Philippine Organic Act, §17–19 and 20–62, on lands of the public domain.
47. Philippine Organic Act, §75.
49. Ibid.
50. Ibid.
52. Francis Burton Harrison, The Corner-Stone of Independence: A Narrative of
Seven Years (New York: The Century Co., 1922), 256.
54. Ibid.
56. Ibid.
57. Ibid.
58. See Benito J. Legarda, Jr., After the Galleons: Foreign Trade, Economic
Change, and Entrepreneurship in the Nineteenth-Century Philippines (Que-
zon City: Ateneo de Manila University Press, 1999).
59. P. J. Cain and A. G. Hopkins, British Imperialism, 1688–2000 (Harlow,
England: Longman, 1993; repr. 2002), 151–66.
60. Ifor B. Powell, “The British in the Philippines in the American Era, 1898–
1946 (1),” Bulletin of the American Historical Collection 9, No. 2 (1981)
identifies British firms that continued to thrive under American rule.
61. Ibid., 7.
62. See generally Edgar Wickberg, The Chinese in Philippine Life, 1850–1898
(Quezon City: Ateneo de Manila Press, 2000). Taft Report, Part X, 1:156,
lists the following Chinese occupations: wholesale, retail, and silk merchants;
druggists, indigo manufacturers, soap makers, barbers, blacksmiths, carpen-

ters, and dealers in potions; water carriers, boatmen, cooks, and dealers in
firewood; workmen and servants.
63. Vicente Albano Pacis, President Sergio Osmeña: A Fully-Documented Biog-
raphy (Quezon City: Philippine Constitution Association, 1971), 1:235.
65. Golay, Face of Empire, 96, quoting “The Duty of Americans in the Philip-
pines, 58th Cong. 2nd Sess., Sen. Doc. 191 (1903–1904), vol. 8.
66. Ibid., 97.
68. Michael S. Billig, Barons, Brokers, and Buyers: The Institutions and Cultures
of Philippine Sugar (Honolulu: University of Hawai’i Press, 2003), 32–59.
69. See Appendix A, Larkin, Sugar, 249.
70. Billig, Barons, 44–5. Apart from free trade, the Insular Government had
arranged to import large numbers of inoculated carabao from China and
Indochina to alleviate the shortage of work animals during the rinderpest
epidemic and built roads in sugar provinces “to facilitate the transport of
cane, farm inputs, and sugar.”
71. See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought
and Historical Difference (Princeton: Princeton University Press, 2007),
249–55.
Chapter 6
1. William Howard Taft, “The Inauguration of the Philippine Assembly (Manila,
October 6, 1907),” in The Collected Works of William Howard Taft: Four
Aspects of Civic Duty and Present Day Problems, ed. David H. Burton and
A. E. Campbell (Athens, OH: Ohio University Press, 2001), 1:83, 105 [here-
inafter, Inauguration Address].
2. Conference Committee of the Philippine Commission, Election of Resident
Commissioners to the United States, Philippine Assembly, 2nd Legislature,
1st Sess., 250-A.38 (Manila, 1911), 51 [hereinafter Resident Commissioners
Election].
3. Ibid., 54.
1938), 2:131n1, citing Philippine Commission, Report of the Philippine Com-
mission to the Secretary of War from 1906 to 1907 (Washington DC, 1907),
1:224.
5. Ibid., 132.
6. Ruby R. Paredes, “The Origins of National Politics: Taft and Partido Fed-
eral,” in Philippine Colonial Democracy, ed., Ruby R. Paredes (Quezon City:
Ateneo de Manila University Press, 1989), 53–8.
7. Ibid.
8. James LeRoy, “The Philippine Assembly,” The World Today, August 1908:
847, 848: Of the 63 non-Manila ilustrado Assemblymen, 31 had held provin-
cial offices under American rule, among them being 10 provincial governors;
32 held municipal offices.
9. Other provincial governors who would play important roles in colonial pol-
itics include Manuel L. Quezon of Tayabas, who would become Resident
Commissioner, Senate President, and President of the Philippine Common-
wealth; Teodoro Sandiko of Bulacan, Assemblyman, Senator, and delegate
to the 1935 Constitutional Convention; Jaime C. de Veyra of Leyte, Resi-
dent Commissioner; Isauro Gabaldon of Nueva Ecija, Senator and Resident
Commissioner.
10. §6, Act No. 82, Municipal Government Code, P.L. 1 (1901): 110. Vot-
ing qualifications included Spanish or English literacy; property worth 500
pesos when peasant-tilled lots were valued at 70 pesos; and prior office-
holding.
11. Michael Cullinane, “Playing the Game: The Rise of Sergio Osmeña, 1898–
1907,” in Philippine Colonial Democracy, ed. Ruby R. Paredes (Quezon City:
Ateneo de Manila University Press, 1989), 82, 91.
12. Ibid.
Rule, 1898–1908 (Quezon City: Ateneo de Manila University Press, 2003),
258–63, 289.
14. Cullinane, “Playing the Game,” 73–96.
15. W. Cameron Forbes, Journal: 1904–1946, 1st series, Vol. 2 (April 17, 1906,
to April 16, 1908), August 23 1907, 284, Journal, W. Cameron Forbes Papers,
1900–1946, fMS Am 1365, Cambridge, MA, by permission of the Houghton
Library, Harvard University [hereinafter Forbes, Journal 1st Ser. V. 2).
16. Ibid., October 12, 1907, 312–3.
1998), 125. The Philippine Commission increased executive control of local
government by transferring the City of Manila to the Governor-General’s
executive control; requiring the Governor-General to approve all Manila
Municipal Board appropriations, empowering American provincial treasur-
ers to appoint Filipino municipal treasurers; authorizing provincial fiscals
and boards to rule on the legality of municipal board acts, resolutions, and
ordinances; restricting the municipal board’s freedom to impose taxes; and
authorizing the Executive Secretary to regulate provincial employee appoint-
ments and salaries. It “also accomplished a comprehensive revision of the
Civil Service Law,” which “increased executive control over appointments to
the insular service.”
18. W. Cameron Forbes, Journal, 1904–1946, 1st Series, Volume 5 (August 8,
1911, to November 22, 1913), February 14, 1912, 102–5, W. Cameron
Forbes Papers, 1900–1946, fMS Am 1365, Cambridge, MA, by permission
of the Houghton Library, Harvard University [hereinafter Forbes, Journal,
1st Ser. V. 5).
19. Taft, “Inauguration Address,” 1:105.
raphy (Quezon City: Philippine Constitution Association, 1971), 1:130.
21. LeRoy, “Philippine Assembly,” 849: Progresistas won 18 out of the remaining
23 seats, while the rest were unattached.
22. Pacis, Osmeña Biography, 1:131.

23. See Bernard Bailyn, The Origins of American Politics (New York: Random
House, 1968).
24. Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty
in England and America (New York: W. W. Norton & Co., 1989), 239–40,
explaining how representation evolved as a mechanism of conferring taxing
power on the sovereign. Taxation did not originally form part of the governing
or legislating power, but was viewed as a free gift granted by subjects to their
king. Taxation originated from a request by the king to the Commons, and
only the Commons, as representatives of the property owners, could give
consent to taxes. Invoking the theory of direct representation, the American
assemblies argued that because the colonies had no representatives in the
Commons, the Commons could not tax the colonies.
25. Daniel T. Rodgers, Contested Truths: Keywords in American Politics
since Independence (Cambridge, MA: Harvard University Press, 1987), 13–
14.
1938), 2:149.
28. In the first vote, held November 4, 1910, the Assembly rejected Legarda by
a vote of 53 to 12. On November 8, the vote to reject was 51 to 5, then 54
to 5. Five more votes were held – one on November 9, another on November
10, and three more on November 11, and Legarda obtained 2, 2, 2, 1, and 0
votes, respectively. See Resident Commissioners Election, 5–6.
29. Ibid., 11.
30. Ibid., 9–10.
31. Morgan, Inventing the People, 25–31.
32. Resident Commissioners Election, 13, 24.
33. Ibid., 22–3. Osmeña pointed out, “It was President Taft himself who said
that peace was due more to the influence of political promises than to armed
action.”
34. Ibid., 9–10.
35. Ibid., 26–7.
36. Morgan, Inventing the People, 240. Parliament had claimed that the American
colonists were “virtually represented” in Parliament, because every member
of the Commons represented not just his constituents who chose him, but all
the king’s subjects, not only in Great Britain, but in the colonies, too.
37. Resident Commissioners Election, 29–30.
38. Ibid., 50–1.
39. Ibid., 51.
40. Ibid., 54.
41. Ibid., 57.
42. Ibid., 29–30.
43. Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in
the Southern Royal Colonies, 1689–1776 (New York: W. W. Norton & Co.,
Inc., 1972), 357–79.
44. Ibid., 266–86.
45. See An Act: Providing for the Quadrennial Election of Members of the Philip-
pine Assembly and Resident Commissioners to the United States and for
Other Purposes, U.S. Statutes at Large 36 (1911): 910.
46. Greene, Quest for Power, see chapter 3, 57–71.
48. Forbes, Journal 1st Ser. V. 5, January 20, 1912, 99: “Washington replied
that the decision of a Porto Rican court in a similar dispute should guide
us, which exactly supports the position of our Auditor here and the course I
intend to pursue.” See also Assistant Executive Secretary to Insular Auditor
William H. Phipps, September 20, 1911; Opinion of Attorney General of
Porto Rico, July 19, 1909; and Ruling of Insular Auditor William H. Phipps,
October 5, 1911, from W. Cameron Forbes, “Philippine Material: Printed
and Manuscript, Box 1,” in W. Cameron Forbes Papers, 1900–1946, bMS
Am 1364.4, Cambridge, MA, by permission of Houghton Library, Harvard
University.
49. Ibid., October 13, 1911 60.
50. See Christine A. Desan, “The Constitutional Commitment to Legislative Adju-
dication in the Early American Tradition,” Harvard Law Review 111, No. 6
(1998); Christine A. Desan, “Remaking Constitutional Tradition at the Mar-
gin of the Empire: The Creation of Legislative Adjudication in Colonial New
York,” Law and History Review 16, No. 2 (1998).
51. Golay, Face of Empire, 126. See Greene, Quest for Power, 72–107.
52. See generally Gordon S. Wood, The Creation of the American Republic,
1776–1787 (New York: W. W. Norton & Co., Inc., 1993).
53. Forbes, Journal 1st Ser. V. 2, October 16, 1907, 319.
54. Ibid.; October 18, 322; October 19, 323–4.
55. W. Cameron Forbes, Journal: 1904–1906, 1st Series, Volume 3 (April 17,
1908, to March 14, 1910), May 20, 1909, 152, Journal, W. Cameron Forbes
Papers, 1900–1946, fMS Am 1365, Cambridge, MA, by permission of the
Houghton Library, Harvard University [hereinafter Forbes, Journal 1st Ser.
V. 3].
56. Forbes, Philippine Islands, 2:400–2.
57. Ibid., 2:151.
58. Forbes, Journal 1st Ser. V. 3, May 22, 1909, 154.
59. W. Cameron Forbes, Journal: 1904–1946, 1st Series, Volume 4 (March 6,
1910, to August 7, 1911), December 7, 1910, 253, Journal, W. Cameron
Forbes Papers, 1900–1946, fMS Am 1365, Cambridge, MA, by permission
of the Houghton Library, Harvard University [hereinafter Forbes, Journal 1st
Ser. V. 4].
60. Forbes, Journal 1st Ser. V. 5, September 4, 1913, 326.
62. Forbes, Journal 1st Ser. V. 3, June 15, 1908, 43–5.
63. Forbes Journal, 1st Ser. V. 4, November 3, 1910, 238.
65. Ibid., 2:156.
66. Ibid., 2:152.
67. Forbes, Journal 1st Ser. V. 4, April 15, 1910, 38–9.

69. Forbes, Journal 1st Ser. V. 3, May 22, 1909, 153–4.
71. Forbes, Journal 1st Ser. V. 5, February 23, 1913, 184–5.
72. Ibid., February 14, 1912, 101–2.
73. Forbes, Journal, 1st Ser. V. 3, May 5, 1909, 143. Act No. 1902, An Act
Authorizing the Governor-General to Direct That Any Unexpended Balances
of Appropriations Be Returned to the General Fund of the Insular Treasury
and to Transfer from the General Fund Moneys Which Have Been Returned
Thereto, P.L. 7 (1909): 159.
74. Forbes, Philippine Islands, 1:284. Forbes, Philippine Islands, 2:150n2, noted
that Forbes made up deficiencies running to $37,500 in 1909, $8,469.26 in
1910, and $10,000 in 1911.
75. Forbes, Journal 1st Ser. V. 3, May 5, 1909, 143.
76. Forbes, Journal 1st Ser. V. 5, February 23, 1913, 183.
77. Resident Commissioners Election, 54.
78. Forbes, Journal 1st Ser. V. 5, February 23, 1913, 182.
79. Ibid., January 20, 1912, 98.
80. Forbes, Journal 1st Ser. V. 4, November 20, 1910, 244.
Chapter 7
1. Teodoro M. Kalaw, Aide-de-Camp to Freedom (Manila: Teodoro M. Kalaw
Society, 1965), 103.
1938), 2:168–80.
4. Maximo M. Kalaw, Self-Government in the Philippines (New York: Century,
1919), 20–1.
5. Forbes, Philippine Islands, 2:203–8.
6. Kalaw, Aide-de-Camp, 103.
States, 1899–1921 (Cambridge, MA: Harvard University Press, 1974), 142.
8. Ibid., 143.
1998), 176.
10. Francis Burton Harrison to Woodrow R. Wilson, November 13, 1918, Gen-
eral Correspondence, February 21, 1918, to April 1, 1919, Manuel L. Quezon
Papers, Box No. 42, Reel No. 8 (Ann Arbor, MI: Bentley Historical Library,
University of Michigan) [hereinafter Quezon Papers, Box 42, Reel 8].
12. See Bureau of Insular Affairs Chief Frank McIntyre to Manuel L. Quezon,
July 2, 1914, and Cablegram from Manuel L. Quezon to Sergio Osmeña, July
6, 1914, General Correspondence, June 30 to November 1914, Manuel L.
Quezon Papers, Box No. 39, Reel No. 5 (Ann Arbor, MI: Bentley Historical
Library, University of Michigan).
13. Preamble, The Philipine Autonomy Act, Public Law 64–240, United States
Statutes at Large 39 (1916): 545–56.
14. Ibid., §12 and 13.
15. Ibid., §21.
16. Ibid., §19 and 21.
17. Ibid., §19.
18. George Arthur Malcolm, The Government of the Philippine Islands: Its
Development and Fundamentals (Rochester, NY: Lawyers Co-Operative Pub-
lishing Company, 1916), 278: Per Philippine Organic Act, Public Law 57–
235, United States Statutes at Large 32 (1902): 691–712, §13, “[b]ills relat-
ing to public lands, timber, mining, the tariff, immigration, and the currency
require the approval of the President in all cases.”
21. Cesar Adib Majul, The Political and Constitutional Ideas of the Philippine
Revolution (Quezon City: University of the Philippine Press, 1967; repr.
1996), 180, quoting Teodoro M. Kalaw, “Memoirs of F. Calderon,” Philip-
pine Review IV (1919).
22. Ibid., 178–82.
23. Ibid., 183–8.
24. The 1899 Constitution of the Republic of the Philippines, Art. 75 ¶ 1: “The
Secretaries of the Government are responsible jointly to the Assembly of the
general administration of the government, and individually for their respective
personal acts” [hereinafter Malolos Constitution].]
25. Kalaw, Philippine Politics, 378.
26. Act No. 2666, An Act to reorganize the Executive Departments of the Gov-
ernment of the Philippine Islands, P.L. 11 (1916): 18.
27. Kalaw, Philippine Politics, 379–80, quoting Philippine Review, October
1916.
28. Malolos Constitution, Art. 73.
29. See §1, Act No. 2803, An Act to Amend Certain Provisions of the Admin-
istrative Code, Regulating Certain Details of the Functions and Authority of
the Executive Departments, and for Other Purposes, P.L. 14 (1919): 173.
30. Malolos Constitution, Art. 74.
31. §2, Act No. 2803.
32. Kalaw, Self-Government, 34–5.
33. Ibid.
34. W. Cameron Forbes, Journal: 1904–1946, 1st series, Volume 3 (April 17,
1908, to March 14, 1910), May 22, 1909, 153, W. Cameron Forbes Papers,
1900–1946, fMS Am 1365, Cambridge, MA, by permission of the Houghton
Library, Harvard University.
35. Kalaw, Philippine Politics, 357, quoting speech delivered at the banquet
commemorating the incorporation of the Liga Popular Nacionalista into the
Nacionalista Party, Manila, September 12, 1915.
36. Ibid., 371, quoting Senator Quezon’s inaugural address, from Philippine
Review, October 1916: 76.
37. Ibid., 384–5.
39. Kalaw, Self-Government, 37.
Seven Years (New York: The Century Co., 1922), 212.
41. Vicente Albano Pacis, President Sergio Osmeña: A Fully-Documented
Biography (Quezon City: Philippine Constitution Association, 1971), 1:
230–2.
42. Leonard Wood, Diaries: July 1, 1924, to August 8, 1927, Reel No. 3, The
Papers of Leonard Wood, folio 17, 910, Library of Congress, Washington,
DC, e.g., February 7, 1924; May 9, 1924.
43. Act No. 2319, An Act Appropriating Funds for Sundry Expenses of the Insu-
lar Government for the Fiscal Year ending December Thirty-First Nineteen
Hundred and Fourteen, and for Other Purposes, P.L. 9 (1914): 152.
44. Kalaw, Self-Government; Maximo M. Kalaw, The Case for the Filipinos (New
York: Century Co., 1916); Maximo M. Kalaw, The Present Government of
the Philippines (Manila: McCullough Printing, 1921); Maximo M. Kalaw,
“Ideals of the Philippines,” Annals of the American Academy of Political and
Social Science 122 (November 1925); Maximo M. Kalaw to Manuel L. Que-
zon, November 30, 1918, General Correspondence, February 21, 1918, to
April 1, 1919, Quezon Papers Box 42, Reel 8. This letter enclosed a memo
entitled, “What does American mean by a ‘Stable Government,’ ” whose con-
tents formed part of materials presented by the Philippine Independence Mis-
sion to President Wilson and the US Congress at the end of the Harrison
administration.
45. Ibid.
46. Harrison, Corner-Stone of Independence, 212.
Schurman Report].
48. Majul, Ideas of the Philippine Revolution, 191.
50. Kalaw, Present Government, 43.
53. Ibid.
54. Ibid.
55. Ibid.
56. Ibid., 36.
57. Pacis, Osmeña Biography, 1: 230–1.

62. Kalaw, Philippine Politics, 391–97.
63. Act No. 2786, An Act making appropriations for public works, P.L. 14
(1918): 150.
64. Act No. 2869, An Act authorizing the Governor-General to prohibit the
exportation of rice, P.L. 15 (1919): 5.
65. See §18(33), Act No. 2935, An act appropriating funds for the necessary
expenses of the Government of the Philippine Islands during the Fiscal Year
ending December thirty-first, Nineteen hundred and twenty-one, P.L. 16
(1921): 5.
66. Ibid., §18(9).
68. Kalaw, Philippine Politics 390–3.
69. Harrison, Corner-Stone of Independence, 202–3.
71. November 29, 1922, Leonard Wood, Diaries: July 1, 1922, to June 30, 1924,
Reel No. 2, The Papers of Leonard Wood, folio 17, 910, Library of Congress,
Washington, DC.
72. June 13, 1921, Leonard Wood, Diaries: January 31, 1921, to June 30, 1922,
Washington, DC.
Chapter 8
Race, and Hygiene in the Philippines (Durham: Duke University Press, 2006),
176, 180.
2. For example, Bureau of Forestry chief Gifford Pinchot took over the US
Forestry Service, Dr. Richard P. Strong, who served in the Bureau of Health,
became Harvard Medical School’s head of Tropical Medicine, and Dr. Vic-
tor Heiser, chief of the Bureau of Health, became director for the East of
the Rockefeller Foundation’s International Health Board. The Philippine ser-
vice’s most stellar alumnus was Governor-General Taft, who went on to
become President Theodore Roosevelt’s Secretary of War, US President, and
US Supreme Court Chief Justice.
3. Anderson, Colonial Pathologies, 180.
raphy (Quezon City: Philippine Constitution Association, 1971), 1:235–6.
5. Ibid., 234.
University of California Press, 1993), 41, 46.
7. Ibid., 54–9.
9. Manuel L. Quezon, General Correspondence, February 21, 1918, to April
1, 1919, Box No. 42, Reel No. 8, Manuel L. Quezon Papers (Ann Arbor,
MI: Bentley Historical Library, University of Michigan) [hereinafter Que-

zon Papers, Box 42, Reel 8]. Letter from Pacific Commercial Company to
Quezon, June 28, 1918; Cablegram from Osmeña and Quezon, Manila, to
Yangco and De Veyra, Washington, DC, August 15, 1918; Cablegram from
de Veyra, Washington, DC, to Osmeña, Manila, August 21,1918; Cable-
gram from Harrison, Manila, to Walcutt, Washington, DC, August 19, 1918;
Cablegram from Walcutt, Washington, DC, to Harrison, Manila, August 29,
1918.
10. Ibid., Director James Rafferty, Bureau of Commerce and Industry, to Sec-
retary Dionisio Jakosalem, Commerce and Communications, February 15,
1919.
11. Ibid., Cablegram from Sergio Osmeña, Manila, to Manuel L. Quezon, New
York, January 30, 1919.
12. Act No. 2596, The Infant Industry Act, P.L. 11 (1916): 228.
1998), 213–14.
Seven Years (New York: The Century Co., 1922), 258–9.
16. See Act No. 2752, An Act creating a committee and authorizing the same to
vote the stock now held by the Government of the Philippine Islands in the
Manila Railroad Company, P.L. 13 (1918): 208.
17. Act No. 2612, An Act creating the Philippine National Bank, P.L. 11 (1916):
248, and laws amending the PNB’s charter, e.g., Act No. 2747, P.L. 13 (1918):
193; Act No. 2938, P.L. 16 (1921): 169.
18. Act No. 2849, An act to create the National Development Corporation, P.L.
14 (1919): 320; Act No. 2862, An Act creating the National Iron Company
and appropriating funds therefor, P.L. 14 (1919): 331; Act No. 2705, An Act
to create the National Coal Company, P.L. 12 (1917): 216; Act No. 2855,
An Act to create the National Petroleum Company, P.L. 14 (1919): 325.
19. Pacis, Osmeña Biography, 1:237–8.
20. Quezon Papers, Box 42, Reel 8, Cable from Acting Governor-General Charles
Yeater, Manila, to Washington, DC, February 14, 1919.
21. Ibid., Cable from Osmeña, Manila, to Quezon, New York, February 14,
1919.
22. Harrison, Corner-Stone, 258–9.
24. Michael Paul Onorato, Leonard Wood and the Philippine Cabinet Crisis of
1923 (Manila: University of Manila Press, 1967), 33.
25. June 6, 1923, Leonard Wood, Diaries: July 1, 1922, to June 30, 1924, Reel
No. 2, The Papers of Leonard Wood, folio 17, 910, Library of Congress,
Washington, DC.
26. Governor General Wood to Secretary of War Weeks, August 31, 1922, ibid.
28. Ibid., 240.
30. March 4, 1926, Leonard Wood, Diaries: July 1, 1924, to August 8, 1927,
Washington, DC.
31. November 25, 1921, Leonard Wood, Diaries: January 31, 1921, to June 30,
1922, Reel No. 1, The Papers of Leonard Wood, folio 17, 910, Library of
Congress, Washington, DC.
32. Ibid., Manila Railroad’s General Manager described the Manila Railroad’s
acting president’s use of railroad workers to build his private residence and
an access road.
33. Confidential Report from Governor-General Wood to Secretary of War
Weeks, March 31, 1922, ibid.
34. Ifor B. Powell, “The British in the Philippines in the American Era, 1898–
1946 (4),” Bulletin of the American Historical Collection 10, no. 1 (1982):
75.
35. Smith, Bell & Co. (Ltd.) v. Natividad, 40 Phil. 136, 148 (1919).
36. See Kwong Sing v. City of Manila, 41 Phil. 103 (1920); Yu Cong Eng v.
Trinidad, 47 Phil. 385 (1925).
37. Yu Cong Eng v. Trinidad, 418.
38. See Part X of US Philippine Commission, Report of the United States Philip-
pine Commission to the Secretary of War for the Period from December 1,
1900, to October 15, 1901 (Washington, DC, 1901).
39. Yu Cong Eng v. Trinidad, 271 U.S. 500, 517 (1926). Filipino elites bypassed
this ruling by adopting anti-alien/pro-Filipino measures, such as the 1935
Constitution’s nationality requirements and the Retail Trade Nationalization
Act upheld in Inchong v. Hernandez, 101 Phil. 1155 (1967).
40. Villavicencio v. Lukban, 39 Phil. 778, 786 (1919).
41. Rubi v. Provincial Board of Mindoro, 36 Phil. 660, 704 (1919).
42. Ibid., 703–4.
43. Ibid., 684–6.
44. Paul A. Kramer, The Blood of Government: Race, Empire, the United States
and the Philippines (Chapel Hill: University of North Carolina Press, 2006),
208–20.
45. Rubi v. Provincial Board of Mindoro, 712.
46. Ibid., 717.
47. Muller v. Oregon, 208 U.S. 412 (1908).
48. Lochner v. New York, 198 U.S. 45 (1905).
50. Ibid., 4–6, 170.
51. People of the Philippines v. Pomar, 46 Phil. 440 (1924).
52. Rubi v. Provincial Board of Mindoro, 717–8.
53. Vicente J. Francisco, “Justice George A. Malcolm,” Lawyer’s Journal XXVI,
no. 2 (1961): 34; Restituto B. Roman, “Malcolm in Public Law,” Philippine
Law Journal 25, no. 1 (1950): 446–55; Teodoro Padilla, “Malcolm in Private
Law,” Philippine Law Journal 25, no. 1 (1950): 457–76.
together with studies in the field of Comparative Constitutional Law

232–3.
Chapter 9
1. Woodrow R. Wilson, Eighth Annual Message to Congress, December 7, 1920,
in Compilation of Messages and Papers of the Presidents, ed. J. D. Richardson
(New York: Bureau of National Literature, 1921), 18: 8881, 8887.
2. Letter from Maximo M. Kalaw to Manuel L. Quezon, November 30, 1918,
and Memo by Maximo M. Kalaw, “What Does America Mean by a ‘Stable
Government’” in General Correspondence, February 21, 1918, to April 1,
1919, Box No. 42, Reel No. 8, Manuel L. Quezon Papers (Ann Arbor,
MI: Bentley Historical Library, University of Michigan) [hereinafter Quezon
Papers, Box 42, Reel 8].
1998), 232.
5. Onorato, Wood and Cabinet Crisis, 38.
7. Onorato, Cabinet Crisis, 37.
8. Golay, Face of Empire, 232, citing Leonard Wood and W. Cameron Forbes,
Report of the Special Mission to the Philippine Islands to the Secretary of
War, 67th Cong., 2nd Sess., H. Rep. Doc. No. 235 [hereinafter Wood-Forbes
Report].
9. Onorato, Cabinet Crisis, 37.
10. Ibid., citing Wood-Forbes Report.
11. November 9, 1922, Leonard Wood, Diaries: July 1, 1922, to June 30, 1924,
Washington, DC [hereinafter Wood Diaries, Reel 2].
12. June 13, 1921, Leonard Wood, Diaries: January 31, 1921, to June 30, 1922,
13. January 24, 1922, ibid.
14. March 23, 1923, Wood Diaries, Reel 2.
15. Jorge Bocobo, General Wood and the Law: A Discussion of the Legal Aspects
of the Political Crisis in the Philippine Islands (Manila: Bureau of Printing,
1923), 52.
16. Ibid.
17. Ibid., 59–60.
18. Ibid., 15.
19. Remarks addressed to the Secretaries of the Departments, October 25, 1921,
Wood Diaries, Reel 1.
20. Ibid.
21. Maximo M. Kalaw to Manuel L. Quezon, December 20, 1922, including

a memo entitled, “The Real Intent of Congress As Regards the Governor’s
Appointive Power,” in General Correspondence, June 8, 1922 to June 27,
1925, Box No. 45, Reel No. 11, in Manuel L. Quezon Papers (Ann Arbor,
MI: Bentley Historical Library, University of Michigan) [hereinafter Quezon
Papers, Box 45, Reel 11].
22. November 9, 1922, Wood Diaries, Reel 2.
23. Ibid.
24. October 25, 1921, Wood Diaries, Reel 1.
25. July 20, 1922, Wood Diaries, Reel 2.
26. November 17, 1922, ibid.
27. Quezon to Wood July 3, 1923, ibid.
28. Carlos Quirino, The Laurel Story: The Life and Times of Dr. Jose P. Laurel,
President of the Second Republic of the Philippines (Manila: Jose P. Laurel
Memorial Corporation, 1992), 32.
29. He was the same Scottish-born journalist deported by Governor-General Har-
rison for his editorials mocking the Philippine National Guard during World
War I. As discussed in Chapter 4, McCulloch Dick’s habeas corpus case
was the context in which the Philippine Supreme Court characterized the
Governor-General’s deportation power as inherent in his office.
the Rise of the Surveillance State (Madison, WI: University of Wisconsin Press,
2009), 246–8, 250–3.
31. Ibid.
32. Bocobo, Wood and the Law, 27–36.
33. Ibid., 20.
34. Ibid., 10–11.
36. Cable No. 479, Secretary of War John Weeks, Washington, DC, to
Governor-General Leonard Wood, Manila, October 11, 1923, Wood Diaries,
Reel 2.
37. Manuel L. Quezon to Frank McIntyre, December 25, 1925, General Corre-
spondence, July 3, 1925, to February 11, 1928, Box No. 46, Reel No. 12,
in Manuel L. Quezon Papers (Ann Arbor, MI; Bentley Historical Library,
University of Michigan) [hereinafter Quezon Papers, Box 46, Reel 12].
38. See “Cardenas Bares Plot with Conley – Is Used as Witness against Suspended
Detective,” Manila Times, April 18 1923, “Laurel Threatened to Resign –
Secretary Explains Stand on Conley Case,” Manila Times, April 28 1923,
“Detective Conley Charged with Bribery,” Philippines Free Press, March 17,
1923, “Order Given by Secretary of Interior Detective’s Record Excellent,
Says Wood,” Manila Times, March 29 1923. These clippings were found in
Scrapbooks, Vol. 1, August 14, 1918, to December 26, 1926, Jose P. Laurel
Papers (Manila: Jose P. Laurel Memorial Library), 54, 63, 49, respectively
[hereinafter Laurel Scrapbooks 1].
39. This cartoon, which appeared in English, Spanish, and Tagalog versions,
forms part of Laurel Scrapbooks 1. Except for the English cartoon, which
is entitled “En Escena Otra Vez” (Editorial Cartoon), El Debate, April 20,
1923, the scrapbooks did not specify which newspapers featured the other
versions. The previous quotes were translated from the Tagalog version by
the author.
41. Manuel L. Quezon to Leonard Wood, July 20, 1923, Quezon Papers, Box
45, Reel 11.
42. Manuel L. Quezon to Leonard Wood, July 19, 1923, ibid.
43. Other examples include the Philippine Commission, the Council of State, the
Emergency Board, and the Public Works Committee.
44. Leonard Wood to Sergio Osmeña, December 6, 1921, Wood Diaries, Reel 1.
Weeks, March 31, 1922, ibid.
46. U.S. v. Ang Tang Ho, 43 Phil. 1 (1922).
47. People of the Philippines v. Pomar, 46 Phil. 440 (1924).
48. Lochner v. New York, 198 U.S. 45 (1905).
49. Pomar also cites Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Adair
v. U.S., 203 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915).
50. Pacifico A. Agabin, “The Politics of Judicial Review Over Executive Action:
The Supreme Court and Social Change,” Philippine Law Journal 64, no. 2
(1989): 189–210, 198. See also Hans Leo J. Cacdac, “People v. Pomar Revis-
ited: Substantive Due Process and the Emergence of the Afford Protection to
Labor Clause,” Ateneo Law Journal 46, no. 2 (1988): 331–80.
51. Borromeo v. Mariano, 41 Phil. 322, 328 (1921).
52. Ibid., 332.
53. Concepcion v. Paredes, 42 Phil. 599, 605 (1921).
54. These cases seem to have laid the foundation for the highly criticized activist
stance adopted by the Philippine Supreme Court in the 1990s toward national
economic policy issues and provide a closer analog to the US Supreme Court’s
pre-New Deal substantive due process jurisprudence. See Ricardo J. Romulo,
“The Supreme Court and Economic Policy: A Plan for Judicial Abstinence,”
Philippine Law Journal 67, No. 3 (1998): 348–53; Solomon Ricardo B. Castro
and Martin Israel L. Pison, “The Economic Policy Determining Function of
the Supreme Court in Times of National Crisis,” Philippine Law Journal
67, no. 3 (1993): 334–411; Frances T. Yuyucheng, “An Analysis of Supreme
Court Decisions with Economic Impact,” Ateneo Law Journal 39, no. 1
(1994): 219–61.
55. Secretary of War John W. Weeks to Governor-General Leonard Wood, July
13, 1922, Wood Diaries, Reel 2.
56. Cable No. 479, Secretary of War Weeks to Governor-General Wood, October
11, 1923, ibid.
57. Leonard Wood to Sergio Osmeña, December 6, 1921, Wood Diaries, Reel 1.
Weeks, ibid.
59. Governor-General Leonard Wood in behalf of the Board of Control to E. W.
Wilson, General Manager, Philippine National Bank, April 29, 1922, ibid.
60. November 22 and 25, 1921, ibid. See also February 16, 1924, and May 5,
1924, Wood Diaries, Reel 2.
61. January 12, 1923, Wood Diaries, Reel 2.

62. January 14, 1923, and January 24, 1923, ibid.
63. June 6 and 8, August 1 and 24, September 10 and 12, 1923, ibid.
64. September 10, 1923, ibid.
65. March 4, 1926, Wood Diaries, Reel 3.
66. May 13, 1924, Wood Diaries, Reel 2.
67. June 4, 1922, Wood Diaries, Reel 1.
68. March 31, May 12 and 13, 1924, Wood Diaries, Reel 2.
69. See February 21, March 9 and 10, 1922, Wood Diaries, Reel 1.
70. March 8 and 23, 1923, Wood Diaries, Reel 2.
71. March 3 and 5, September 13 to 19, 1926, Wood Diaries, Reel 3.
72. April 18 and September 12, 1923, Wood Diaries, Reel 2.
73. October 6, 1923, ibid.
74. September 6 and 9, 1918, Quezon Papers, Box 42, Reel 8.
76. August 17, 1923, Wood Diaries, Reel 2.
77. Concurrent Resolution No. 20, P.L. 14 (1918): 343.
78. Act No. 2933, An Act to Provide for a Standing Appropriation of One Million
Pesos Per Annum for the Independence Commission , P.L. 16 (1920): 4.
81. Wood to Sotto, September 13, 1923, ibid.
82. Abueva v. Wood, 45 Phil. 612 at 621, 628 (1924).
83. Golay, Face of Empire, 253–4, February 2, 7, and 15, 1924, Wood Diaries,
Reel 2.
84. Cable No. 584, General Frank McIntyre, Chief of Bureau of Insular Affairs,
Washington, DC, to Governor-General Wood, Manila, February 29, 1924,
ibid.
85. See Manuel L. Quezon to Frank McIntyre,1st quarter 1926, and Manuel L.
Quezon to Secretary of War John Weeks, 1st quarter 1926, Quezon Papers,
Box 46, Reel 12.
86. Golay, Face of Empire, 262. But note that in Wright v. Ynchausti and Co.,
272 U.S. 640 (1926), the US Supreme Court opened one crack in the Insular
Auditor’s impenetrable armor when it reversed the Insular Supreme Court
and allowed judicial appeals from the Insular Auditor’s decisions involving
the classification of duties under tariff laws.
87. Ibid., 253–4.
89. September 9, 1924, and October 14, 1925, ibid.
90. January 14, 1924, Wood Diaries, Reel 2.
92. Ibid.
94. Alejandrino v. Quezon, 46 Phil. 83, 94 (1924).
95. Ibid., 96.
96. Ibid., 97.
97. Alejandrino v. Quezon, 271, U.S. 528, 532 (1926).
98. Manuel L. Quezon to Secretary of War John Weeks, 1st quarter 1926, Quezon
Papers, Box No. 46, Reel No. 12.
Chapter 10
1. July 28, 1925, Leonard Wood, Diaries: July 1, 1924, to August 8, 1927, Reel
No. 3, The Papers of Leonard Wood, folio 17, 910, Library of Congress,
3. Executive Order No. 37 (1926). Issued on November 9, 1926, Exhibit
C, House Committee on Insular Affairs, Annual Report of the Governor-
General of the Philippine Islands, 1926, 70th Cong., 1st Sess., 1927, H.
Doc. 99.
4. November 17, 1926, Wood Diaries, Reel 3.
(Boston: Christopher Publishing, 1957), 31.
6. Brief for Respondents, Springer v. Government of the Philippine Islands,
50 Phil. 259 (No. 27–564), and Agoncillo v. Government of the Philippine
Islands, 50 Phil. 348 (No. 27–573), Cert. Denied, 277 U.S. 189 (1928), 21
[hereinafter Respondents’ Brief, Board of Control Cases].
7. Government of the Philippine Islands v. Springer, 50 Phil. 259, 288–90
(1927).
8. Ibid., 288.
9. Ibid. 289.
10. Ibid., 290.
11. Ibid., 290–1.
12. Ibid., 335–6.
13. Amended Brief for Petitioners, Agoncillo v. Government of the Philippine
Islands, 50 Phil. 348 (No. 27–573), Cert. Denied, 27 U.S. 189 (1928), at 10,
quoting Floyd Russell Mechem’s A Treatise on the Law of Public Offices
and Public Offices, which defined a public office as “one invested with some
portion of sovereign functions of the government, to be exercised by him for
the benefit of the public” [hereinafter Petitioners’ Amended Brief, Agoncillo
v. Government of P.I.].
14. Government of P.I. v. Springer, 273.
15. Springer v. Government of the Philippine Islands; Agoncillo v. Government
of the Philippine Islands, 277 U.S. 189, 201 (1928).
16. Ibid., 202.
18. Ibid., 342–3.
19. Ibid., 343.
20. Ibid., 276.
21. Daniel T. Rodgers, Contested Truths: Keywords in American Politics since
Independence (Cambridge, MA: Harvard University Press, 1987), 151.
23. Ibid., 309–12.
24. Ibid., 279.

25. Petitioners’ Amended Brief, Agoncillo v. Government of P.I., 43–49, quoting
Section 22 of the Jones Law, which vested in the Governor-General the power
to appoint the following: (1) “such officers as might be appointed by the
Governor-General, prior to August 29, 1916,” which curiously contradicts
the Petitioners’ position; (2) “such as he is authorized by the provisions of this
chapter to appoint”; and (3) those “whom he may hereafter be authorized by
law to appoint.”
26. Ibid., 40–3.
27. Springer v. Government of P.I., 212.
28. Ibid., 209.
31. Ibid.
32. Ibid.
33. Ibid., 202–3.
34. Ibid., 205–6; Government of P.I. v. Springer, 315–17.
36. Government of P.I. v. Springer, 291–2.
the Rise of the Surveillance State (Madison, WI: University of Wisconsin
Press, 2009), 268–92, citing Restituto B. Roman, “Malcolm in Public Law,”
Philippine Law Journal 25, no. 1 (1950): 446–55; Teodoro Padilla, “Malcolm
in Private Law,” Philippine Law Journal 25, no. 1 (1950): 457–76; Isagani
Cruz and Cynthia Cruz Datu, Res Gestae: A Brief History of the Supreme
Court from Arellano to Narvasa (Manila: Rex Book Store, 2000), 80–1;
Vicente J. Francisco, “George A. Malcolm,” The Lawyer’s Journal XX, no.
10 (1956): 469.
39. Letter from Manuel L. Quezon to George A. Malcolm, August 25, 1920, in
General Correspondence, April 1, 1919, to January 5, 1921, Box No. 43,
Reel No. 9, Manuel L. Quezon Papers (Ann Arbor, MI: Bentley Historical
Library, University of Michigan) [hereinafter Quezon Papers, Box 43, Reel
9].
42. Myers v. U.S., 272 U.S. 52 (1926).
43. See also Buckley v. Valeo, 424 U.S. 1 (1976); Humphrey’s Executor v. U.S.,
295 U.S. 602 (1935); Wiener v. U.S., 375 U.S. 349 (1958); Bowsher v. Synar,
478 U.S. 714 (1986).
44. Myers v. U.S., 117.
45. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2nd ed.
(New York: Aspen Publishers, Inc., 2002), 320, pointing out that since
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) and A.L.A. Schechter
Poultry Corp. v. U.S., 295 U.S. 495 (1935), “not a single federal law has been
declared an impermissible delegation of legislative power.”
46. See ibid., 324–7, citing Buckley v. Valeo; Bowsher v. Synar; INS v. Chadha,
462 U.S. 919 (1983); Process Gas Consumers Group v. Consumer Energy
Council of America, 463 U.S. 1216 (1983); Metropolitan Washington Air-
ports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501
U.S. 252 (1991).
47. Ibid., 327.
48. George A. Malcolm, “Explaining the Situation,” 18–19, October 7, 1923,
address to the American Chamber of Commerce, under the Auspices of
the American Relief Association in Speeches, Addresses, Messages, and Pro-
nouncements, 1921 to November 13, 1923, Box No. 76, Reel No. 26, Manuel
L. Quezon Papers (Ann Arbor, MI: Bentley Historical Library, University of
Michigan).
49. April 6, 1927, Wood Diaries, Reel 3.
50. Jack C. Lane, Armed Progressive: General Leonard Wood (San Rafael: Pre-
sidio Press, 1978), 271.
51. Letter of the President of the United States Containing His Reasons for Veto-
ing the Plebiscite Bill, April 6, 1927, House Committee on Insular Affairs,
Annual Report of the Governor-General of the Philippine Islands, 1927,
70th Cong., 1st Sess., 1928, H. Doc. 325, Appendix C, 64, 65–6.
52. Ibid., 68.
53. Ibid.
54. Ibid., 69.
55. Personal and confidential letter of Amzi Kelly to the editors of the Herald
and Tribune, December 7, 1926, in General Correspondence, July 3, 1925,
to February 11, 1928, Box No. 46, Reel No. 12, Manuel L. Quezon Papers
(Ann Arbor, MI: Bentley Historical Library, University of Michigan).
56. Malcolm, “Explaining the Situation,” 6.
57. See generally Rodgers, Contested Truths.
59. Secretary of War Weeks to Governor-General Wood, October 11, 1923,
Cable 479, Diaries: July 1, 1922, to June 30, 1924, The Papers of Leonard
Wood, folio 17, 910, Library of Congress, Washington DC.
60. Manuel L. Quezon and Manuel Roxas to Leonard Wood, July 2, 1923,
in General Correspondence, June 8, 1922, to June 27, 1925, Box No. 45,
Reel No. 11, Manuel L. Quezon Papers (Ann Arbor, MI: Bentley Historical
Library, University of Michigan).
Chapter 11
1. Henry L. Stimson and McGeorge Bundy, On Active Service in Peace and War
(New York: Harper & Row, 1948), 134–5.
1998), 273, 276.
3. Ibid., 273.
4. Stimson and Bundy, On Active Service, 137.
5. Manuel L. Quezon, The Good Fight (New York: D. Appleton-Century Com-

pany, 1946), 146–7.
6. Stimson and Bundy, On Active Service, 138.
8. See generally ibid., 271–345.
9. Paul A. Kramer, The Blood of Government: Race, Empire, the United States
and the Philippines (Chapel Hill: University of North Carolina Press, 2006),
392–413.
12. Michael S. Billig, Barons, Brokers, and Buyers: The Institutions and Cultures
of Philippine Sugar (Honolulu: University of Hawai’i Press, 2003), 47.
13. Appendices A and B, John Larkin, Sugar and the Origins of Modern Philippine
Society (Berkeley: University of California Press, 1993), 250, 252.
15. Billig, Barons, 50.
16. Larkin, Sugar, 105.
17. Jose E. Romero, Not So Long Ago: A Chronicle of My Life, Times, and
Contemporaries (Manila: Alemar-Phoenix Publishing House, Inc., 1979),
36.
18. Jose M. Aruego, The Framing of the Philippine Constitution (Manila: Philip-
pine Education Foundation, Inc. 1949), 1:393.
19. Ibid., 427–42.
20. Jose M. Aruego, The Philippine Constitution: Origins, Making, Meaning,
and Application (Manila: The Philippine Lawyers Association, 1972), 5:114,
39–40, 477–83.
21. Joseph Ralston Hayden, The Philippines: A Study in National Development
(New York: The MacMillan Company, 1942), 40.
(Boston: Christopher Publishing, 1957), 114–15, 19.
23. Miguel Cuaderno, The Framing of the Constitution of the Philippines
(Manila: Philippine Education, 1937), 2–9.
24. Hayden, National Development, 36–7.
25. Aruego, framing, 1:429–32.
27. Aruego, Philippine Constitution, 1:166.
30. Ibid., 38–9. Delegates with legislative experience included seven members of
the first Philippine Assembly, 19 senators, and more than 50 lower house
members. Those with judicial experience included one Insular Supreme Court
Associate Justice, three Court of First Instance judges, and a few Justices of
the Peace. From the executive branch were three department secretaries and
two Resident Commissioners. Finally, there were 30 provincial governors.
31. Ibid., 40–61.

32. Jose M. Aruego, The Philippine Constitution: Origins, Making, Meaning, and
Application (Manila: The Philippine Lawyers Association, 1972), 3:43.
33. Ibid., 57
34. See Articles XII and XIII§ 6, 7, 8, 1935 Phil. Const.
35. Jose M. Aruego, The Philippine Constitution: Origins, Making, Mean-
ing, and Application (Manila: The Philippine Lawyers Association, 1972),
6:500–1.
36. Cuaderno, Framing, 27.
38. Article II§5, 1935 Phil. Const.: “The promotion of social justice to insure the
well-being and economic security of all the people should be the concern of
the State.”
39. Article XIII§6, 1935 Phil. Const.
40. Delegates from Negros Occidental and Oriental, described as practicing
lawyers, businessmen, public officials, and farmers “engaged in extensive
farming” or “large scale farming.” See Aruego, Philippine Constitution, 1:49–
53, 60.
Seven Years (New York: The Century Co., 1922), 258–9.
43. Aruego, Philippine Constitution, 2:226–33. At 229–31, Locsin traces the prin-
ciple to “the program of Christian democracy, expounded by Rosignoli,” and
New Deal ideas explained by President Franklin D. Roosevelt and Governor-
General Frank Murphy.
44. Ibid., 236–7.
45. Ibid. 237.
47. See James C. Scott, “The Erosion of Patron-Client Bonds and Social Change
in Southeast Asia,” Journal of Asian Studies 32, no. 1 (1972): 5–37; James C.
Scott and Benedict J. Kerkvliet, “The Politics of Survival: Peasant Responses
in to ‘Progress’ in Southeast Asia,” Journal of Southeast Asian Studies 4, no.
2 (1973): 241–68.
48. Golay, Face of Empire, 340. The Sakdal Party became a political force in the
1934 elections, winning national and local offices, but its triumph was “short-
lived . . . as the party members elected to the legislature promptly defected
to the ‘Anti’ [against Hare-Hawes-Cutting Act, which was Quezon’s side]
contingent of the Nacionalistas.”
50. Pacifico A. Agabin, “The Politics of Judicial Review over Executive Action:
The Supreme Court and Social Change,” Philippine Law Journal 64, no. 2
(1989): 202–3, quoting Speech of President Quezon before the Foreign Policy
Association, New York, April 13, 1937, Message of the President 67–8, vol.
III, Part I (1937).

52. Ibid., 157.
53. Ibid., 158.
54. Quezon, The Good Fight, 160.
55. Quezon’s Inaugural Address: www.gov.ph/1935/11/15/inaugural-address-of-
president-quezon-november-15-1935/.
Conclusion
1. Alfred W. McCoy, “Quezon’s Commonwealth: The Emergence of Philip-
pine Authoritarianism,” Philippine Colonial Democracy, ed. Ruby R. Paredes
(Quezon City: Ateneo de Manila University Press, 1989), 147–8.
2. Ibid., 132.
3. George A. Malcolm, American Colonial Careerist: Half a Century of Official
Life and Personal Experience in the Philippines and Puerto Rico (Boston:
Christopher Publishing, 1957), 128–30.
4. McCoy, Quezon’s Commonwealth, 122.
6. McCoy, “Quezon’s Commonwealth,” 132.
7. Mark R. Thompson, The Anti-Marcos Struggle: Personalistic Rule and Demo-
cratic Transition in the Philippines (New Haven: Yale University Press, 1995),
16–19.
9. Raymond Bonner, Waltzing with a Dictator: The Marcoses and the Making
of American Policy (New York: Times Books, 1987), 302.
10. Ibid., 284–5, 309–10.
W. W. Norton & Company, Inc., 1993), 136, 149, 155.
13. Government of the Philippine Islands v. Springer, 50 Phil. 259, 279 (1927).
(Washington DC, 1900) [hereinafter McKinley’s Instructions].
15. 1987 Phil. Const. Article VI § 25 (7): “If, by the end of any fiscal year,
the Congress shall have failed to pass the general appropriations bill for the
ensuing fiscal year, the general appropriations law for the preceding fiscal
year shall be deemed re-enacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.”
16. See McCoy, “Quezon’s Commonwealth.” James K. Boyce, The Philippines:
The Political Economy of Growth and Improvement in the Marcos Era (Lon-
don: Palgrave Macmillan, 1993); Gary Hawes, The Philippine State and the
Marcos Regime: The Politics of Export (Ithaca: Cornell University Press,
1987); Rigoberto Tiglao, “The Consolidation of the Dictatorship,” in Dicta-
torship and Revolution: Roots of People Power, ed. Aurora Javate-de Dios
(Metro Manila: Conspectus Foundation, 1988).
17. McCoy, “Quezon’s Commonwealth,” 126.
18. See U.S. Const., Article I §8¶14: “To provide for calling forth the militia to
execute the laws of the union, suppress insurrections and repel invasions;”;
Article I§8¶15: “To provide for organizing, arming, and disciplining, the
militia, and for governing such part of them as may be employed in the service
of the United States, reserving to the states respectively, the appointment of the
officers, and the authority of training the militia according to the discipline
prescribed by Congress”; and Article I§9¶2: “The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it.”
19. “Cheney Reflects on Legacy, Defends Interrogation Policy,” interview by Jim
Lehrer, The Jim Lehrer News Hour, PBS, January 14, 2009.
Index
administration constitutional, 5, 7, 9, 37, 40, 62–3,

American colonial, 9, 55, 59, 64–5, 99, 68–9, 97, 239, 241
100–1, 103, 106, 121, 128, 144, 151, control, 5, 6, 9, 163, 193, 234, 241
166–7, 176, 186, 200–2, 203, 222, American empire, 3, 4, 7, 10, 11, 18, 19,
223 20, 21–4, 25
British North American, 151, 263 American exceptionalism, 4, 7, 17–18,
imperial, 154 24–6, 36, 81, 85, 86, 99, 191, 193,
Malolos, 166, 167 219, 236, 239, 242, 266
Philippine, 249, 251, 257 American expansion, 12, 24, 133
Spanish colonial, 45, 52, 53, 57–9, 64–5, acquisition of Philippines, 17–23
105 American identity, 7, 23, 25, 68, 71, 72,
administrative bodies, 116 81, 266
expertise, 121, 128, 167, 175, 208 American liberal constitutionalism, 4, 5, 6,
hybrid, 64, 165, 169, 170, 206–7, 210, 7, 10, 11–12, 71–2, 87, 96, 116, 129,
232, 242 130, 138, 189, 190, 192, 222, 233,
Agoncillo, Felipe, 28, 216 239, 254, 266
Aguinaldo, Emilio, 27, 42–3, 44–6, 49, 63, Philippine transplant, 88–9, 90, 100,
166 179, 256, 262
Agustin, Basilio, 31, 45 American republic, 4, 8, 11, 19–20, 23, 24,
Alejandrino, Jose, 216–18 37, 69, 72, 75, 78, 84–5
Allen, William, 71, 74 Anderson, Thomas, 27
American colonial regime Anglo-Saxonism, 10, 21, 24, 30, 86, 170,
civil, 29, 45, 47, 48, 59, 62–3, 64, 100, 266
101–2 anti-imperialism, 71, 75, 77–8
military, 44, 46–7, 59, 62, 64, 99, 101, anti-imperialists, 21, 23, 27, 29, 32–3, 67,
140, 162, 216 69, 71, 73, 79, 81
American colonialism, 7, 11, 17, 24–5, 35, appropriations, 157
39, 66, 221, 258, 265 automatic, 150, 164, 263
consensual/democratic, 7, 9, 40, 43–6, dispute, 145–6, 150, 154, 158, 174
49–50, 52, 66, 91, 100, 123, 139, Independence Fund, 214, 216
140, 149, 161, 173, 192, 219, 224, Arellano, Cayetano, 47, 49, 50, 108, 116,
239, 241 142
319
320 Index
Aruego, Jose, 248 China trade, 21, 246

Assembly Galleon Trade, 104
Malolos, 165–6, 167, 170 Chinese
National, 249, 250, 259, 260 deportation, 108, 109
Philippine, 52, 64, 137, 139–59, 163, immigrants, 32, 74
168, 169, 173, 174, 236, 263 merchants, 136, 187–8
Audiencia, 47, 64 mestizos, 31, 41, 43, 136, 137
Chinese Exclusion cases, 109, 116
Baldwin, Simeon, 75, 77, 80–1, 82 Christianity, 17, 22, 24, 31
Barcelon v. Baker, 106–7 civil service, 29, 40, 55–7, 59–61, 104,
Barrows, David, 59 167, 199, 202, 249, 260
benevolent assimilation, 44, 125 civilization, 4, 9, 10–11, 20–1, 24, 30–1,
Bernas, Joaquin, 90, 127–8 42, 43, 44, 62, 72, 86, 100
Bill of Rights, 7, 40, 62, 67, 72, 84, 86, 87, capacity, 8–9, 31, 33, 35–7, 39, 41, 71,
88, 90, 91, 92, 104, 119, 121, 124, 93–4, 105, 188–90, 235
126–7, 129, 176, 248, 251–2, 257, colonial mission, 2, 17, 18, 25, 26, 28,
263 33, 34, 37, 98–100, 106, 123–5
Board of Control, 165, 170, 182–4, 206, commerce, 34–5
210–13, 216, 220–1, 238–9, 241–2, limited government, 91, 130
253 classical legal thought, 7, 72–3, 77, 82,
Board of Control cases, 196, 221–35, 238, 90, 105, 113, 120, 121, 128, 132, 179,
240, 249, 263 189–90, 192, 208, 228, 240, 253–4,
Bocobo, Jorge, 198, 203–4, 227 256
Bonifacio, Andres, 42, 46 colonialism, 26, 34–5
Brandeis, Louis, 189, 228 Commission
British empire, 22–3, 40, 139, 248 Philippine, 48, 50, 52–5, 59, 61, 63–4,
colonial governance, 63, 69 65, 67, 87, 93–6, 100–1, 102, 107–8,
commerce, 22, 34, 135–6, 137, 180, 110, 120, 132–3, 136, 140, 141,
187, 246 143–4, 150–1, 153, 154–7, 158, 162,
India, 11, 26–7, 30, 35, 36, 45, 97, 105, 163, 166, 168, 171, 174, 192, 236
138, 266 Schurman, 28, 30, 31, 33, 39, 40, 43–6,
North American colonial governments, 47, 51, 55, 57, 65, 68, 69–70, 104,
12, 139–41, 145, 148, 150, 151–2, 124, 141, 172
158, 262 Taft, 29, 36, 46, 47, 48, 49, 57, 62, 63,
Brown, Henry Billings, 75–6, 80, 81, 82–4 98, 125
Bryan, William Jennings, 22–4, 32, 46 Commonwealth v. Alger, 111, 112,
Bureau of Insular Affairs, 134, 164, 205, 114–16, 128
216 Concepcion, Venancio, 185
Bureau of Public Health, 102, 113, 125, Conley, Ray, 202–3, 205
178, 179 Cooley, Thomas, 90, 111, 114, 118,
Bush, George W., 2, 265 126–7, 226
Coolidge, Calvin, 204, 230, 234, 243, 246
Cabinet Crisis, 196, 201–2, 204, 209, 212, Council of State, 165, 169–70, 171, 173–6,
213, 214, 215, 217, 233, 236, 237, 183, 197, 200, 202, 204, 205, 233,
249 239, 242, 244, 260
Cabot Lodge, Henry, 21 Critical Legal Studies, 12
Calderon, Felipe, 165–6 Cuba, 19, 21–2, 27, 32, 34, 59, 171, 180,
Catholic Church, 1, 104, 125, 134 194, 248
Cebu Portland Cement Company, 212,
239 Declaration of Independence, 78
Cheney, Richard, 265 democracy, 31, 33, 35, 98, 259
Index 321
American, 4, 7, 8, 10, 11, 28, 40, 45, 49, Filipinization, 59, 61, 139, 141, 144, 158,
50, 67, 71–2, 107, 124, 138, 193, 161–4, 165, 166–9, 175, 179, 186,
219, 236, 250 194–5, 196, 197, 217, 242
Philippine, 1, 9, 47 Filipino people, 7–11, 10, 30, 39, 41–2, 43,
Democratic Party, 46, 157, 158, 160, 161, 50, 55, 61, 66, 123–6, 142–6, 148–9,
241, 242 152, 153, 154, 157, 169, 175, 183,
despotism 186, 189, 192–3, 195, 198–9, 214–15,
constitutional colonial, 87, 91, 96, 138, 222, 224, 236–7, 239, 258, 261, 262
266 Filipino-owned, 136, 182, 213, 253
executive, 119, 122 Foraker Act, 75, 76, 81
imperial, 6, 7, 25, 36, 65, 81, 130 Forbes, W. Cameron, 34, 59, 96, 108, 118,
Dewey, George, 27, 28 133, 141, 143–4, 146, 147, 150,
disease, 101, 106, 112, 113, 119, 125 152–8, 160–1, 168, 171, 174, 194,
Downes v. Bidwell, 68, 74, 78, 80, 81–4, 202–3, 244, 262, 263
85 foreign investment, 22, 133, 134, 136, 180,
due process, 77, 83, 84, 89, 90, 127–8, 181, 246, 247, 252
188, 208–9, 233, 252, 253, 254, 255 free trade, 137, 162, 187, 243, 244, 246,
Dutch empire, 11, 26, 34, 103 248
French empire, 26
elections, 40, 51–2, 117, 139–40, 142, 143, friar lands, 134–5
147–9, 154, 157, 168, 169, 196, 199, friars, 41, 51, 62
212, 215, 245, 257, 258, 260, 261 frontier thesis, 20
Elliott, Charles Burke, 10, 265
emergency, 3, 99, 107, 113–4, 208, 251, Garrison, Lindley, 199
261, 264 German empire, 110
equal protection, 83, 89, 127, 186, 188, Gilbert, Newton, 147
190, 233, 252 Gomez Jesus, Dominador, 113
executive power, 59, 64, 70, 95, 96, Government of P.I., 4, 7, 8, 33–4, 39, 40,
116–20, 149, 169, 172–4, 183, 224–6, 49–50, 59, 61, 62, 63, 64, 67, 86, 87,
228–9, 231–2, 244, 264 91–2, 96, 98–103, 105–6, 107–11,
American Military Governor and 114–15, 124, 128, 131–4, 139, 140,
Governor-General, 4, 9, 63–5, 93, 150–1, 160, 163, 165, 170, 171, 176,
101, 109–10, 120–1, 144, 151, 152, 178–86, 191–3, 195, 196–7, 200, 203,
157, 163–4, 167, 175–6, 203, 205, 206–7, 208, 210–11, 213, 219, 222–4,
215, 218, 222–3, 230–1, 237–8 235, 236, 237, 241, 242, 254, 260,
Malolos president, 166–7 262–4
Philippine president, 3, 248–51, 257,
262 habeas corpus, 3, 106–7, 119, 164, 238,
Spanish Governor-General, 9, 57, 63–5, 250, 264
107 Hale, Lord Matthew, 116, 131
state governors, 118 Hamilton, Alexander, 19, 28, 88, 96, 172
U.S. president, 5, 63, 231 Harding, Warren, 193, 194
exploitation, 34, 133, 135, 207 Hare-Hawes-Cutting Act, 247–8
extension theory, 80, 83, 84 Harlan, John Marshall, 76, 78, 81, 85
Harrison, Francis Burton, 34, 36–7, 134,
Fairfield Bill, 245–6 161–3, 164, 168, 169–70, 171, 173–5,
federal government, 68, 71, 72, 77, 102, 179, 181, 183, 184, 187, 194, 196,
105–6, 108–9, 115, 240 198, 208, 244, 246
federalism, 9, 78–9, 86–7, 91–2, 96, 99, Hay, John, 28, 44
105, 106, 126, 129, 235, 251 Hayden, Joseph Ralston, 249–50
Fernandez, Ramon, 202, 204 Heiser, Victor, 179, 186
322 Index
Hoar, George, 77–8, 81 Insular, 9, 52, 63–4, 111, 146,

Holmes, Oliver Wendell, 110, 227–8 152, 164, 165, 166, 167, 174, 176,
183, 187, 192, 204, 209–10, 213,
ilustrados, 31, 32, 33, 36, 39, 40–3, 45–9, 215, 216, 222, 224, 225–6, 227,
50, 51, 61–2, 64, 113, 126, 130, 140, 229, 230, 232, 237–9, 252, 262,
142–3, 149, 165 263
imperialism Malolos, 165–6
benevolent, 1, 2, 7, 10–11, 17–18, 25, Philippine, 251, 254, 261, 263
34–6, 37, 40, 65–6, 76, 129, 153, 196, Spanish, 65
256, 258, 265 state, 72, 73, 115, 151, 226–7
traditional/European, 11, 22, 26, 34–6, territorial, 70, 79, 80
40, 133, 139, 153 liberalism, 7–8, 37, 41, 123–4, 138, 188,
imperialists, 21, 24, 39, 69, 71, 73, 75, 265
78–80, 81 reform, 9, 130
incorporation theory, 74, 83, 84, 85 universality, 8, 10, 12, 29–30, 40, 83,
independence, 4, 7–8, 23, 27–8, 35, 42–3, 186, 189, 240
47, 49, 63, 71, 74, 93, 99, 106, 143–4, liberty, 8, 23, 36, 44, 83, 90, 114, 124,
147, 152–4, 157–8, 161, 194–5 173, 188, 194, 258
Independence Commission, 171, 214–16, practical, 126, 129–30
220 Lowell, Abbott Lawrence, 20–1, 74, 81–3
Insular Auditor, 151, 214–16
Insular Cases, 68, 75, 87, 91, 99, 105 Mabini, Apolinario, 43, 108, 113, 165–6
Insular Doctrine, 74–5, 84, 85, 86, 99, 100 MacArthur, Arthur, 134
Iraq, 2, 265 MacArthur, Douglas, 3
Madison, James, 19–20, 28, 117, 129, 172,
Johnson, E. Finley, 107, 108, 109–11, 231
112–14, 119, 208, 215, 217–18, 226, Mahan, Alfred Thayer, 22
228–31 majoritarian tyranny, 72, 121, 151, 187,
Jones Ford, Henry, 160–1 190–1, 192, 226–7, 232, 263
Jones, William, 163, 202 Malcolm, George, 3, 25, 89–92, 95–6,
judicial review, 107, 119–21, 238–9, 251 112–14, 119–21, 127, 138, 177,
judiciary, 8, 72, 106, 121, 208–9, 217, 219 186–91, 192, 217–18, 223–7, 229–33,
American, 8, 72, 82, 85, 94, 96, 121, 236–7, 249–50, 251, 260, 261
217 Mangyans, 188–9
Philippine, 92–6, 106, 120, 208–9, 257 Manila Railroad Company, 136, 185–6,
212
Kalaw, Maximo, 10, 161, 165, 169, Marcos, Ferdinand, 1–2, 3, 5, 10, 250,
170–1, 172–4, 175, 198, 199, 227 261–2, 264
Kalaw, Teodoro, 160, 171 Martial Law, 1, 3, 5, 10, 261
Katipunan, 42–3 McCulloch, Dick, R., 110, 202, 203
McIntyre, Frank, 164, 205, 216
landowners, 48, 115, 131 McKinley, William, 4, 7, 17, 19, 27, 34,
Langdell, Christopher Columbus, 74–5, 39, 44, 47, 63, 119, 243, 256, 258
79, 82, 85 McKinley’s Instructions, 29, 49, 62, 87,
Laurel, Jose, 90, 202, 204, 205, 216, 249, 94, 125, 263
252 Merritt, Wesley, 27, 44, 46
law and development, 2, 15, 266 modernity, 10, 25, 55, 98, 100, 123, 124,
legal pluralism, 11, 26–7, 36 128, 131, 161, 251, 257
Legarda, Benito, 48, 142, 146, 158 modernization, 9, 33, 98, 123, 130, 153,
legislative majorities, 8, 9, 72, 121, 141, 160, 162, 189, 206, 241, 246
192, 226–7 Muñoz Palma, Cecilia, 1, 3
legislature, 96, 110, 120, 121, 128, 226 Murphy, Frank, 244, 249
Index 323
National Development Company, 182–4, Republic, 3, 9, 253, 261, 262

211–12 Philippine House of Representatives, 163,
national economic development, 181, 184, 196, 249, 256
206, 208, 222, 253 Philippine National Bank, 182, 184–6,
Non-Christian tribes, 52, 162, 188–9, 194, 195, 199, 209, 210–11, 213, 221,
216–17, 218 238, 239, 246, 254, 261
Philippine Senate, 64, 163, 164, 167, 169,
Organic Acts, 9, 29 209, 216–18, 235, 238, 249,
Jones Law, 5, 62, 64, 94, 110, 120, 161, 259
163–4, 166, 167, 168, 169, 171, 172, Philippine Supreme Court, 47, 52, 86, 88,
175, 183, 193, 194, 196–7, 198–9, 92, 93–6, 107, 112, 115, 119, 120,
203, 205, 215, 218, 220, 223, 224–6, 127–8, 129, 179, 192, 208–9, 214,
227, 228–9, 231, 232, 233, 236, 242, 217, 224, 235, 238, 252, 253
247, 248, 264 Platt, Orville, 71, 76, 79
Philippine Organic Act, 47, 62, 64, 94, police power, 9, 90, 111–20, 127–9, 130,
107, 122, 134, 140, 141, 143, 145–6, 251
150, 164 priests, 41, 50–1, 62, 134
orientalism, 3, 26, 57, 262 private, 8, 72, 73, 88, 90, 114–15, 116,
Osmeña, Sergio, 141, 142–3, 144–6, 123, 124, 127, 128, 131, 132, 138,
147–9, 153, 155–7, 161, 164–5, 195, 210, 223, 225, 227, 228, 251,
169–70, 172, 175–6, 179–80, 181, 257
182–4, 195–6, 204, 207, 243, 245, progressivism, 55, 176, 179, 192, 199,
247, 250 224, 240, 253
Otis, Elwell, 44, 47 civilizing, 98, 99, 100, 138
colonial state, 9, 33, 66, 98, 104, 128,
Palma, Rafael, 162, 166–7, 170 241
Pardo de Tavera, Trinidad, 48, 49, 142 legal thought, 179, 186, 191, 228, 230,
Partido Democrata, 168, 214–15 233, 254, 256
Partido Federal, 48–9, 61, 140, 142–3 Propaganda Movement, 41
Partido Nacionalista, 118, 140, 143, Protestantism, 21, 22, 30
144–5, 146, 147–8, 154–6, 157, public, 8, 73, 88, 90, 127, 131–2, 138,
167–9, 171, 175–6, 195–6, 197, 201, 176, 179, 181, 182–4, 186–7, 188,
211, 214–15, 235, 237, 245–6, 260 191, 192, 195, 199, 210, 222–4, 227,
Partido Progresista, 143, 146, 154–5, 157, 228–9, 231, 252–3, 257
168 public education, 61, 98, 100, 102, 104,
Paterno, Pedro, 49 124–5
patronage politics, 48, 51–2, 59, 61–2, public health, 2, 57, 102, 103, 104,
140, 142, 146, 148, 185, 199, 201, 111–4, 125, 131, 155, 178, 195,
211, 213, 255, 259, 260 207
Philippine Constitution public interest, 114, 116, 120–1, 124, 128,
1935, 3, 5, 9, 90, 95, 242, 249, 254, 129, 176, 179, 186, 198–9, 207, 212,
256–7, 262, 264 213, 215, 224, 237, 253, 257
1987, 90, 263 businesses affected with, 130–1
Malolos, 28, 43, 93, 104, 165, 166, 167, public purpose, 128, 192
170, 172, 191, 249
Philippine constitutional dictatorship, 2, 4, Quezon, Manuel, 2, 146, 150, 153, 154,
9–10, 261 163, 164, 168–71, 176, 182, 184,
Philippine government 185, 195–6, 198, 201–2, 204, 205–6,
Commonwealth, 3, 9, 52, 95, 142, 248, 211–13, 214, 216, 219, 221, 227,
255, 257, 258, 259–60, 262 230, 235, 238, 243, 244, 245–6,
Malolos, 27, 45, 99, 104–5, 165, 170, 247–8, 249–50, 251, 253, 255, 256,
172 257–8, 259–61, 262, 264
324 Index
Quezon-Roxas directors, 222, 223–4, 225, 144, 145, 147, 149, 162, 175, 177,
227–8, 232 195, 218, 241
separation of powers, 7, 40, 62–3, 64–5,
race, 20–4, 26, 30, 32–3, 48, 63, 179, 206, 67, 87, 92, 94, 106, 107, 110, 116–17,
239 118–19, 121–2, 126, 129, 139–40,
railroads, 22, 102, 131, 133–4, 153, 160, 152, 156, 161, 171–3, 176, 197, 217,
182, 254 224–5, 233, 235, 248, 251, 263
Randolph, Carman, 74–5, 77, 79–81, 82, Spanish, 92–3
84–5 social justice, 253–4
representation, 5, 7, 36, 40, 50, 52, 66, sovereignty, 4, 8, 9, 30–1, 39, 40, 43, 73,
140–1, 142, 152, 153–4, 191 84, 99, 106–9, 121, 126, 127, 129,
British rule, 69 149, 162, 198, 224, 234, 235–6, 239,
direct, 144–6, 147, 148–9, 173, 192, 258
199 capacity, 7, 28, 30, 32, 35–6, 66, 125
Spanish rule, 41, 51 constitutive, 71, 77–8
territorial, 70 organic, 9, 67–8, 71–2, 76, 78–9, 86–7,
virtual, 147, 148 92, 99, 109, 111, 112, 114, 116
Republican Party, 33, 135, 157, 242 popular, 9, 10, 17, 25, 49, 116, 151,
republicanism, 19, 25, 26, 37, 69, 78, 85, 152, 157, 191, 193, 199, 213
118, 130, 193, 248, 265 Spaniards, 27, 32, 41–2, 93–4, 132, 180
Resident Commissioner, 70, 146–8, 150, Spanish empire, 24, 26, 27, 31, 40, 98,
154, 163, 164, 168, 171, 202 139
retention, 33, 86, 243, 246, 247 state, 43, 72–3, 107, 112, 115, 129, 161,
revolutionaries, 27–8, 31–2, 42, 44–6, 49, 191, 206
62, 104, 106–8 colonial, 26, 28, 29, 46, 66, 102, 137,
Revolutions 196
American, 25, 114, 151, 263 nightwatchman, 99, 105, 132, 189–90
Cuba, 18, 27 regulatory, 12, 131, 237, 251, 253, 257
People Power, 1–2 sovereign, 30, 31, 35, 86, 108, 123, 129
Philippine, 5, 7, 27, 30, 42, 43, 51, state-building, 2, 46–7, 64, 66, 89, 100–1,
166, 170 160, 171
Rizal, Jose, 4, 41, 42, 46 statehood, 32, 49, 66, 70, 71, 80, 84–5, 86
Roosevelt, Franklin, 244, 250, 259 states, 32, 59, 68, 72, 75, 77, 78, 79, 80,
Roosevelt, Theodore, 20, 47, 135, 139, 82, 84, 86–7, 91–2, 102, 106, 109,
199, 244, 245 111, 114, 127, 133, 151, 226–7,
Roosevelt, Theodore, Jr., 244 262–3
Root, Elihu, 28–31, 33, 36, 39, 40, 42, 43, Stimson, Henry, 242–4, 247
46, 47, 62–3, 67–8, 70, 76, 79, 83–4, sugar, 21, 31, 132, 133, 136, 213
85–6, 141, 154, 171, 188, 194, 199, Havemeyer Sugar Trust, 21, 29, 135
243 Philippine sugar, 41, 51, 135, 137, 179,
Roxas, Manuel, 196, 200, 204, 211–12, 180, 184, 185, 210–2, 239, 243,
214, 220–1, 238, 245, 247, 251, 256 246–7, 261
rule of law, 2, 7, 9, 18, 25–7, 36, 38, 40, Philippine sugar elites, 41, 49, 137, 185,
62, 67–9, 72–4, 84, 89, 97, 99, 126, 247, 253–5
171, 176, 191–2, 195, 202, 263 Sugar Central Board, 182, 183, 184, 254
Sayre, Francis, 259 Taft, William Howard, 29, 46, 47–9, 50,
Schurman, Jacob Gould, 28 55, 61, 63, 93, 98, 126, 130, 134–5,
self-government, 7, 17, 23–4, 28, 31–3, 136–7, 139, 141–2, 145, 146, 147,
35–6, 39–40, 51, 55, 61, 63, 66, 69, 153, 188, 218–19, 231–2, 243, 246,
75, 77, 84, 115, 120, 125, 128, 139, 262
Index 325
Tagalogs, 30, 43, 46, 107, 170 US House of Representatives, 135, 163
taxes, 33, 34, 40, 43, 51, 52–3, 57, 83, 98, US Senate, 21, 24, 28, 33–4, 68, 71, 74,
111, 125, 133, 146, 155, 168, 185, 76–7, 81, 117, 141, 194, 199, 231
188, 201–2, 214, 261 US Supreme Court, 71, 74–5, 82, 84, 85,
Teller, Henry, 24, 25, 27 87, 94–5, 105, 113, 128, 224, 232
territories, 19, 32, 34, 55, 67–86 universal legal actor, 30, 123
government model, 63, 64, 66, 70–1,
140, 203 veto, 164, 175, 200–1, 204, 214, 216, 234,
incorporated, 75, 76, 82, 84, 86 244
unincorporated, 8, 68, 84, 86–7, 89,
91–2, 99, 105–6, 108–11, 152, 210, War
224, 235, 240, 257, 258 Philippine-American, 28, 102, 106, 113,
Thayer, James Bradley, 23, 74, 75, 76, 141
78–9, 82, 85 Spanish-American, 2, 18, 21, 24, 27, 45
towns, 50–5, 113, 115 World War I, 36, 103, 110, 181, 182,
Treaty of Biak-na-Bato, 27 187, 208, 214, 246
Treaty of Paris, 21, 24, 28, 32, 44, 68, 71, World War II, 3, 10, 253, 259
74, 81–2, 130 Weeks, John, 204–5, 209–10, 216, 219,
tribes, 30–1, 39, 43, 44, 148, 188–9, 237, 246
252 well-regulated society, 114–16, 128–9, 251
Turner, Frederick Jackson, 20 White, Edward Douglass, 74–6, 80, 81,
tutelage, 31, 32, 40, 46, 66, 99 83–4, 85
Tydings-McDuffie Act, 248 Willis, H. Parker, 185
Wilson, E. W., 210–11
US Congress, 19, 29, 33, 47, 63, 70, 75, Wilson, Woodrow, 157, 160–1, 162, 194,
84–6, 88, 91–2, 94, 96, 99, 105, 107, 196, 242
111, 114, 117, 122, 127, 129, 133, Wood, Leonard, 176, 185, 186, 194,
134–5, 141, 145–6, 150, 154, 159, 195–207, 209–19, 220–2, 227, 230,
161, 163, 164, 171, 172, 189, 194, 232, 233–4, 239, 241, 242–4, 249,
197, 203–4, 205, 224, 227, 232, 256, 262
235–6, 241, 244, 246, 257, 265 Wood-Forbes Report, 195, 201
US Constitution, 7, 8, 25, 66, 67–9, 87–9, Worcester, Dean, 135
91, 92, 95, 96, 105, 109, 117, 122, Wright, Benjamin, 211, 214, 215–16
129, 151, 226, 235, 264–5 Wright, Luke, 106, 107, 142

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The Foundations of the Modern Philippine State

Imperial Rule and the American Constitutional Tradition in

The US occupation of the Philippine Islands in 1898 began a foun-

Leia Castañeda Anastacio is an S.J.D. graduate of Harvard Law School

Previously published in the series:

LEIA CASTAÑEDA ANASTACIO

Cambridge University Press is part of the University of Cambridge.

This publication is in copyright. Subject to statutory exception

10 Colonial Conflict, Constitutional Categories: Constitutional

A flash of insight sparked this decade-long endeavor. And it came in

Frank I. Michelman, for strengthening my grasp of American Consti-

Finally, my heartfelt thanks to my family and friends for their love,

Widely seen to have systematically failed in the Philippines, this pro-

General, an officer who made the sovereignty of the US government

Philippine Law and History

Filipino identity out of what Renato Constantino calls a “usable past”

of authority themselves extend, accept, or challenge the order in which

American Empire and the Rule of Law

historian William Wiecek explains, this paradigm was informed by a set of

US agent was sovereign, but not popular, concentrated and unbounded,

what benevolent imperialism seemed generously to give to Filipinos, it just

this liberal critique comparatively as well as temporally. In so doing,

sovereignty that the United States exercised over unincorporated terri-

government’s agenda toward their vision of national development. Imbu-

the legacy of the philosophy and practice of American liberal empire on

Republican Means, Imperial Ends

American Empire and the Rule of Law

Speaking with the Christian Advocate’s James Rusling in 1903, President

government both defined and distinguished her, this paradigm animated

American Expansion: Destiny and Decision

unreceptive to talk of Anglo-Saxon superiority, Bryan depicted destiny

Civilizing Benevolence through an American Rule of Law

Exceptional Empire and the Rule of American Law

Filipino Aspirations and American Principles

government of military occupation the following day. At the Paris Peace

Capacity, Consent, and Constitution

Capacity and Universality

members of the American polity, international law scholar Antony Anghie

ilustrado cooperation, like the Spaniards and Philippine revolutionaries

Alternatives to Sovereign Nationhood

Capacity for and through Self-Government

appropriations bill that funded the larger army requested by McKinley,

was the decision to use commerce as a civilizing tool. When nation-

their project as exceptional, for no traditional imperialist would under-

entitled to develop on their own, Harrison and his contemporaries viewed

conducted through, as it was restrained by, the consensual and consti-

American Theory, Spanish Structure,

Inventing the Filipino People, Constructing the

Campaigning to reelect President McKinley in 1900, Secretary of War

To convince Filipinos to lay down arms and substitute one colonial

Filipino Consent and the Moral Legitimacy of American Rule

The Ilustrado Origins of Filipino Nationhood

Ilustrado mastery of Western discourses was validated by international

principalia. Principalia, or native chieftains, were charged with tax and

Wooing Filipino Consent

historian Peter Stanley observes, “[t]he character of the Philippine insur-

Concrete acts would be necessary to win over revolutionaries as well

rights which Americans hold to be the natural and inalienable birthright

Deeds, not Words

Spanish colonial regime. When General Otis reconstituted the Audien-

of sugar elites from Negros. Commissioner Pardo de Tavera and Chief

Colonial Government of, for, and by the Filipino People