Our Changing Constitution Part 5

[Footnote 1: 7 Howard, 283 (1849).]

[Footnote 2: Not always for the worse: vide the Charles River Bridge case, 11 Peters, 420, imposing salutary restrictions on the doctrine of the Dartmouth College case.]

[Footnote 3: Dred Scott v. Sandford, 19 Howard, 393 (1857).]

The suppression of the Great Rebellion brought an enormous increase in the national power and in the popular will to national power. State rights did not loom large in the popular or the legislative mind in reconstruction days. Taney was dead. The Supreme Court had been practically reconst.i.tuted by appointments made by President Lincoln and his immediate successors and it seems to have been antic.i.p.ated that the new Court would take the view of national powers prevailing in Congress and the country at large. In this the popular expectation was doomed to disappointment. The Court displayed an unexpected solicitude for the rights of the states and firmness against federal encroachment. Chief Justice Salmon P. Chase, who had been President Lincoln's war Secretary of the Treasury, went so far as to p.r.o.nounce unconst.i.tutional some of his own official acts performed under the stress of war.

In the great case of State of Texas v. White[1] the rights of Texas as a sovereign state were a.s.serted, though Texas had joined in the Rebellion and was not represented in the national legislature.

[Footnote 1: 7 Wall., 700 (1869).]

In The Collector v. Day[1] it was held that Congress had no power to tax the salary of a state official.

[Footnote 1: 11 Wall., 113 (1871).]

In the Slaughter House cases[1] an act of the Legislature of Louisiana, granting to a corporation created by it exclusive rights to maintain slaughter houses for the City of New Orleans and other territory, was upheld, as a valid exercise of state police power, against claims that the legislation violated rights secured under the newly adopted amendments to the Federal Const.i.tution (Amendments XIII, XIV, XV). The opinion of the Court delivered by a Northern judge (Miller of Iowa) stands as one of the bulwarks of state authority.

[Footnote 1: 16 Wall., 36 (1873).]

In a series of later cases various reconstruction acts of Congress involving encroachments upon state rights were either held unconst.i.tutional or radically limited in their effect. For example, the decision in United States v. Cruikshank[1] greatly limited the effect of the so-called Federal Enforcement Act. The decision in United States v. Harris[2] declared unconst.i.tutional portions of an act of Congress designed for the suppression of activities of the Ku-Klux variety. In the so-called Civil Rights cases[3] certain provisions of the federal Civil Rights Act, pa.s.sed in furtherance of the purposes of the new const.i.tutional amendments and designed to secure to persons of color equal enjoyment of the privileges of inns, public conveyances, theatres, etc., were held unconst.i.tutional as an encroachment on the rights of the states.

[Footnote 1: 92 U.S., 542 (1875).]

[Footnote 2: 106 U.S., 629.]

[Footnote 3: 109 U.S., 3.]

These are but a few of the many decisions of the Supreme Court in the reconstruction period upholding the rights of the states against attempted federal encroachment arising from the conditions of the Civil War. The nation owes a debt of grat.i.tude to the men who composed the Court at this time for their courage and firmness in the face of popular clamor and pa.s.sion.

The solicitude of the Court for the rights of the states did not end with the reconstruction period. It has continued down to the present day. In the Income Tax cases[1] the Court held that a tax upon income from bonds of a state munic.i.p.al corporation was repugnant to the Const.i.tution as a tax upon the borrowing power of the state.

[Footnote 1: Pollock v. Farmers Loan & Trust Co., 157 U.S., 429 (1895).]

In Keller v. United States[1] the Court declared unconst.i.tutional, as an encroachment on the police power of the states, an act of Congress making it a felony to harbor alien prost.i.tutes, the Court declaring that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Const.i.tution."

[Footnote 1: 213 U.S., 138 (1909).]

In the Child Labor case[1] the Court held the federal Child Labor Law of 1916 unconst.i.tutional as invading the police power reserved to the states. The Court said:

This Court has no more important function than that which devolves upon it the obligation to preserve inviolate the const.i.tutional limitations upon the exercise of authority, federal and state, to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Const.i.tution.[2]

[Footnote 1: Hammer v. Dagenhart, 247 U.S., 251 (1918).]

[Footnote 2: An even stronger a.s.sertion of state rights is found in the Child Labor Tax Case (Bailey v. The Drexel Furniture Co.) decided May 15, 1922, after this chapter had been put into print.]

How is it then, someone may ask, if the Supreme Court is so zealous in defense of the rights of the states, that those rights are being encroached upon more and more by the National Government? The answer must be that there has been a change in the popular frame of mind. The desire for uniformity, standardization, efficiency, has outgrown the earlier fears of a centralization of power. Congress has found ways, under the const.i.tutional grants of power to lay taxes and regulate interstate commerce, to legislate in furtherance of the popular demands. The Court is not strong enough (no governmental agency which could be devised would be strong enough) to hold back the flood or permanently thwart the popular will. In a government of the people everything has to yield sooner or later to the deliberate wish of the majority.

Some profess to view the recent encroachments of federal power as a triumph of the principles advocated by Alexander Hamilton and John Marshall over the principles of Thomas Jefferson. Such a claim does Hamilton and Marshall an injustice. While they both stood for a strong National Government, neither of them contemplated any encroachment by that government on the principle of local self-government in local matters or the police power of the states.

Marshall in one of his most powerful and far-reaching p.r.o.nouncements in support of the national supremacy[1] speaks of

that immense ma.s.s of legislation, which embraces everything within the territory of a state not surrendered to the General Government;... inspection laws, quarantine laws, health laws of every description ... are component parts of this ma.s.s.

[Footnote 1: Gibbons v. Ogden, 9 Wheat., 1, 203, 208.]

Later in the same opinion he refers to

the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens.

... The power of regulating their own purely internal affairs whether of trading or police.

Hamilton devotes an entire number of the Federalist[1] to combatting the idea that the rights of the states are in danger of being invaded by the General Government. In another place[2] he returns to the idea

that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members

and concludes that it is to be hoped that the people

will always take care to preserve the const.i.tutional equilibrium between the general and the state governments.

[Footnote 1: Federalist, Number XVII.]

[Footnote 2: Id., Number x.x.xI.]

That hope has failed of realization. The "const.i.tutional equilibrium" of which Hamilton wrote is not being preserved. Some will say that this is an age of progress and we are improving upon Hamilton. Others, however, think we are forgetting the wisdom of the Fathers.

VIII

THE FEDERAL TAXING POWER AND THE INCOME TAX AMENDMENT

Had the World War come five years earlier the United States would have been much handicapped and embarra.s.sed in financing its share of the struggle. One of the chief sources of national revenue during and since the war, the income tax, would not have been available. The federal income tax had been declared unconst.i.tutional by the Supreme Court in 1895, and it was not until eighteen years later that the obstacle pointed out by that decision was removed through the adoption of an amendment to the Const.i.tution. The Sixteenth or Income Tax Amendment was proposed by Congress to the legislatures of the several states in 1909 and took effect, having been ratified by three-fourths of the states, in 1913. Declared by its sponsors at the outset to be intended merely as a recourse in case of emergency, the tax authorized by the amendment was at once put into operation and there seems to be little likelihood that it will ever be abandoned.

Without the const.i.tutional amendment no general income tax would be practicable. And yet the amendment conferred no new power of taxation on the National Government. To explain this seeming paradox it will be necessary to consider briefly the scope and limitations of the federal taxing power.

One of the chief defects, perhaps the most vital defect of all, in the Confederation which carried through the Revolutionary War and preceded the Union, was its inability to raise revenue directly by taxation. The Confederation was obliged to call upon the several states to furnish their respective contributions or quotas, and requisitions upon the states encountered delays and sometimes were ignored altogether. There were no effective means of compulsion.

With these facts before them the founders of the Union determined that the new government should not be wrecked upon this rock at any rate, and therefore insisted, against great opposition, in conferring upon it powers of taxation which were practically unlimited in their reach. The Const.i.tution was made to provide that[1]

the Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.

[Footnote 1: Const., Art. I, Sec. 8, Clause 1.]

The only tax which Congress was expressly forbidden to lay was a tax on exports.[1] It was, however, provided that indirect taxes (duties, imposts, and excises) should be uniform throughout the United States,[2] and that direct taxes should be apportioned among the states according to population.[3] The last mentioned provision was a concession to the fears of the wealthier states lest their citizens be taxed unduly for the benefit of the poorer states, and represented one of the great compromises by which the ratification of the Const.i.tution as a whole was secured.

[Footnote 1: Const., Art. I, Sec. 9, Clause 5.]

[Footnote 2: Id., Art. I, Sec. 8, Clause 1.]

[Footnote 3: Id., Art. I, Sec. 2, Clause 3. Sec. 9, Clause 4.]