[Footnote 1: Revenue Act of 1918, t.i.tle XII.]

There was no pretense that this act was enacted for the purpose of raising revenue. The revenue feature was merely legislative camouflage. To quote the words of Justice Holmes in a recent case,[1] "Congress gave it the appearance of a taxing measure in order to give it a coating of const.i.tutionality."

[Footnote 1: United States v. Jin Fuey Moy, 241 U.S., 394.]

The debate in the Senate was highly illuminating.[1] Its sponsors admitted that the measure was not expected or intended to produce revenue but was designed to regulate child labor and nullify the decision of the Supreme Court. Senators learned in the law conceded that if this purpose and effect were declared on the face of the act, or were necessarily inferable from its provisions, it must inevitably be declared unconst.i.tutional. Reliance was placed, however, on the facts that the act was ent.i.tled "A bill to raise revenue," and that its provisions did not necessarily, on their face, belie this label. It was argued that the Supreme Court would be bound, under its own previous rulings, to treat the act as if it were what it purported on its face to be-a revenue measure-and to ignore common knowledge and senatorial admissions to the contrary. The measure pa.s.sed the Senate by a substantial majority and was enacted as part of the revenue bill then under consideration, from which it has been carried forward into the present revenue law.

[Footnote 1: See "Congressional Record" of December 18, 1918.]

There the matter stands at this writing. A District Court judge has declared the new act unconst.i.tutional but the question has not yet been pa.s.sed upon by the Supreme Court.

It would be venturesome to attempt to predict what the Supreme Court will do about it. Many const.i.tutional lawyers seem to think that Congress has succeeded in its attempt and that the act will be sustained. Certainly there are strong precedents pointing that way. Three in particular will be relied upon-the Veazie Bank case, the Oleomargarine case and the Narcotic Drug Act case.

In the Veazie Bank case[1] the Supreme Court upheld the validity of a so-called tax law whose purpose and effect were to suppress the circulation of notes of the state banks. In the Oleomargarine case[2] the Court upheld a tax whose purpose and effect were to suppress the manufacture and sale of oleomargarine artificially colored to look like b.u.t.ter. In the Narcotic Drug case[3] the Court upheld a tax imposed by the so-called Harrison Act[4] whose purpose was to regulate the sale and use of narcotic drugs. In each of these cases there could be no doubt in the mind of any intelligent man as to the motive for the enactment. The Court has uniformly maintained, however, that

when Congress acts within the limits of its const.i.tutional authority, it is not the province of the judicial branch of the Government to question its motives.[5]

[Footnote 1: Veazie Bank v. Fenno, 8 Wall., 533, decided in 1870.]

[Footnote 2: McCray v. United States, 195 U.S., 27, decided in 1904.]

[Footnote 3: United States v. Doremus, 249 U.S., 86, decided in 1919.]

[Footnote 4: 38 Stat., 785.]

[Footnote 5: Smith v. Kansas City t.i.tle Company, 255 U.S., 180, 210.]

In the Narcotic Drug Act case[1] the Court held

While Congress may not exert authority which is wholly reserved to the states, the power conferred by the Const.i.tution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress; and, where the provisions of the law enacted have some reasonable relation to this power, the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, cannot invalidate them; nor can the fact that they affect the conduct of a business which is subject to regulation by the state police power.

[Footnote 1: United States v. Doremus, 249 U.S., 86.]

It is true that, while the Supreme Court may not question congressional motives, it cannot escape the obligation to construe a statute in the light of its true nature and effect. The Court has said:[1]

The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not in so many words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.

[Footnote 1: Collins v. New Hampshire, 171 U.S., 30.]

As already indicated, however, the nature and effect of a statute must ordinarily be determined from the form and contents of the act itself, rather than from outside sources, and the measure under consideration purports to be a revenue act.

In the light of the decisions and principles of interpretation to which reference has been made, the case against the const.i.tutionality of the act may seem well-nigh hopeless. The fact remains, however, that Congress has not met the fundamental objection raised by the Supreme Court. The Court declared the former act unconst.i.tutional, not only because it transcended the power of Congress under the particular provision of the Const.i.tution then invoked, viz., the Commerce Clause, but also on the broad ground of state rights, because it "exerts a power as to a purely local matter to which the federal authority does not extend." It is difficult to see how this objection is obviated by reenacting the act as a revenue measure. Under the circ.u.mstances perhaps the apprehensive foes of federal encroachment should withhold their lamentations until the Supreme Court has spoken again.[1]

[Footnote 1: Since this chapter was put into print the Court has spoken. In Bailey v. The Drexel Furniture Co. (decided May 15, 1922) the Child Labor Tax Law was p.r.o.nounced unconst.i.tutional. The Court, while conceding that it must interpret the intent and meaning of Congress from the language of the act, held that the act on its face is an attempt to regulate matters of state concern by the use of a so-called tax as a penalty. The opinion of the Court, written by Chief Justice Taft, is an emphatic a.s.sertion of the duty and function of the Court to preserve the const.i.tutional equilibrium between nation and states.]

VII

STATE RIGHTS AND THE SUPREME COURT

A century ago the United States Supreme Court was the bulwark of national power against the a.s.saults and pretensions of the states. To-day it is the defender of the states against the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing toward the sun at sunrise and away from the sun in the afternoon without having changed its course. The Supreme Court has been the most consistent factor in our governmental scheme. While there have been differences of viewpoint between liberal constructionists and strict constructionists among its members, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Court moves. The earth has been turning on its axis. The frame of mind of the people who compose states and nation has changed.

At the outset (to cling for a moment to our nautical metaphor) the Court was obliged to put forth on an unknown sea. Its sailing orders under the new Const.i.tution were unique. Precedents, those charts and lighthouses of the judicial mariner, were lacking. Progress was tentative and groping. Little wonder therefore that at first the business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original appointees, resigned after a few months, preferring the position of Chancellor of his native state to which he had been chosen. John Jay, the first Chief Justice, resigned to become Governor of New York, and later declined a reappointment as Chief Justice in words indicating entire lack of faith in the powers and future of the Court.

Nevertheless, the first period of the Court was by no means barren of achievement. A beginning was made. The supremacy of the national authority under the new Const.i.tution was a.s.serted. So stoutly indeed was it maintained in the memorable case of Chisholm v. Georgia,[1] that the country was thrown into a ferment. The Court had entertained a suit against a sovereign state by a private citizen of another state and rendered a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a const.i.tutional amendment designed to prevent such actions in future.[2] It has been the fashion to speak of this incident as a striking example of the recall of judicial decisions. Such indeed it was. The decision did not suit the popular frame of mind and was promptly overruled in the method prescribed by the Const.i.tution. It went a long way, however, toward establishing the Supreme Court as a power to be reckoned with on the side of national supremacy and authority.

[Footnote 1: 2 Dallas, 419, decided in 1793.]

[Footnote 2: Amendment XI.]

Three years later the Court again took occasion to a.s.sert the national supremacy in no uncertain fashion. The case was Ware v. Hylton[1] and the Court laid down the proposition that a treaty of the Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circ.u.mstance that one of the counsel on the losing side in this case was John Marshall of Virginia, and that this was the only case he ever argued before the tribunal through which he was destined to play so momentous a part in history.

[Footnote 1: 3 Dallas, 199, decided in 1796.]

In the annals of the Supreme Court and the development of American const.i.tutional law the name of John Marshall stands preeminent. He was appointed Chief Justice by President John Adams, and took his seat on the Bench at the beginning of the new century (February 4, 1801). He was without judicial experience, but his record in other fields of activity and his well-known Federalist principles pointed him out as a man to be reckoned with and explain the aversion with which he was viewed by Thomas Jefferson, the incoming President. The breach between the President and the Chief Justice was widened by some of the early decisions of the latter upholding the supremacy of the National Government and the powers of the Supreme Court, notably the famous case of Marbury v. Madison,[1] in which was a.s.serted the power of the Court to declare an act of Congress void as in conflict with the Const.i.tution. Some years elapsed, however, before a case was decided which squarely involved a conflict between the powers of the Federal Government and the powers of a state. The issue came up in the case of United States v. Judge Peters.[2] This case involved a conflict of jurisdiction between the federal courts and the authorities of the State of Pennsylvania over the distribution of some prize money. Marshall's decision was a strong a.s.sertion of the federal jurisdiction and power. The Governor of Pennsylvania, under sanction of the state legislature, called out the state militia to resist enforcement of the judgment of the Court. Matters were tense for a time and bloodshed seemed imminent but the state finally backed down.

[Footnote 1: 1 Cranch, 137.]

[Footnote 2: 5 Cranch, 115, decided in 1809.]

In the following year (1810) came the case of Fletcher v. Peck,[1] in which for the first time a statute of a state was held by the Supreme Court to be void as repugnant to the Federal Const.i.tution. The State of Georgia had sought by statute to destroy rights in lands acquired under a previous act. It was held that the statute was unconst.i.tutional as impairing the obligation of contracts within the meaning of the Const.i.tution.

[Footnote 1: 6 Cranch, 87.]

In Martin v. Hunter's Lessee[1] was a.s.serted the right of the Federal Supreme Court to overrule the judgment of a state court on questions arising under the Federal Const.i.tution. The State of Virginia had denied that right and the Supreme Court reversed the judgment of the Virginia Court of Appeals.

[Footnote 1: 1 Wheat., 304 (1816.)]

In McCulloch v. State of Maryland,[1] a case involving an attempt by the State of Maryland to tax the Bank of the United States, Marshall's doctrine of implied powers was elaborated, and the judgment of the state court upholding the tax was reversed.

[Footnote 1: 4 Wheat., 316 (1819).]

In the Dartmouth College case[1] the doctrine of the inviolability of contracts against attack by state legislation was further developed. An act of the state legislature of New Hampshire had sought to alter the charter of Dartmouth College, and the New Hampshire courts had upheld the legislature. The Supreme Court reversed the state court and declared the statute unconst.i.tutional under the clause of the Const.i.tution which declares that no state shall make any law impairing the obligation of contracts.

[Footnote 1: Dartmouth College v. Woodward, 4 Wheat., 518 (1819).]

In the great case of Gibbons v. Ogden[1] the Court a.s.serted the paramount jurisdiction of the National Government over interstate commerce. This was one of the most important and far-reaching of all Marshall's decisions. An injunction had been granted by Chancellor Kent and unanimously sustained by the Court of Errors of New York, restraining Gibbons from navigating the Hudson River by steamboats licensed by Congress for the coasting trade on the ground that he was thereby infringing the exclusive right, granted by the legislature of New York, to Robert R. Livingston and Robert Fulton to navigate the waters of the state with vessels moved by steam. The Supreme Court reversed the state courts and held the New York legislation void as an interference with the right of Congress, under the Const.i.tution, to regulate interstate commerce.

[Footnote 1: 9 Wheat., 1 (1824).]

These were only a few of that series of great decisions which stand out like mountain peaks on the horizon of our national life. Marshall's judgments transformed a governmental experiment into something a.s.sured and permanent. They confirmed the national supremacy and made the Const.i.tution workable.

Marshall is known to history for his work in vindicating the national power under the Const.i.tution. That was the need in his day and he met it with superlative wisdom and skill. It would be a mistake, however, to suppose that he favored federal encroachment upon the powers reserved to the states. On the contrary, he rendered decisions in favor of state rights which would be notable were they not overshadowed by the greater fame of the decisions which went to the building of the nation.

With the pa.s.sing of Marshall and the accession of Taney as Chief Justice a new chapter opened in the history of the Court. The Federalists had become extinct. Andrew Jackson had come into power and it had fallen to his lot to fill a majority of the seats upon the bench by appointments to vacancies. The result was at once apparent. Two cases[1] involving important const.i.tutional questions, which had been argued during Marshall's lifetime but a.s.signed for reargument on account of a division in the Court, were now decided contrary to Marshall's known views and in favor of a strict construction of national powers. Justice Story, Marshall's longtime a.s.sociate on the bench, dissented strongly in both cases, lamenting the loss of Marshall's leadership and the change in the viewpoint of the Court.

[Footnote 1: Mayor of New York v. Miln, 11 Peters, 102; Briscoe v.

Bank of Kentucky, 11 Peters, 257, decided in 1837.]

It would serve no useful purpose to enter upon a detailed consideration of the various decisions upon const.i.tutional questions made during the twenty-eight years of Taney's Chief Justiceship. They were marked by great diversity of views among the members of the Court. In some of them, notably the famous Pa.s.senger cases,[1] the Court fell into a state reminiscent of the confusion of tongues that arose at the building of the Tower of Babel. The scope of certain of Marshall's decisions was limited.[2] Upon the whole, however, the structure of const.i.tutional law which Marshall had reared was not torn down or greatly impaired. The national supremacy was upheld. Taney and his a.s.sociates were for the most part patriotic men and eminent lawyers, proud of the Court and its history and anxious to add to its prestige. It is regrettable that the merits of some of them have been so obscured and their memory so clouded by a well-meaning but unfortunate excursion into the field of political pa.s.sions. In the Dred Scott case[3] they thought to quiet agitation and contribute to the peace of their country by pa.s.sing judgment upon certain angrily mooted questions of a political character. The effort was a failure and brought upon their heads, and upon Chief Justice Taney in particular, an avalanche of misrepresentation and obloquy.