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Published online by Cambridge University Press: 02 September 2013
The work of the court last term is chiefly notable for its amplification of certain important results of the preceding term. Thus, the final objection to the validity of the Eighteenth Amendment was refuted; the last great question touching the meaning of the word “income” in the Sixteenth Amendment was answered; the emergency powers of government in war time were brought into contact with more usual sources of public authority—this in the rent law cases; and some minor phases of the problem of freedom of speech and press were disposed of. However, in two cases, both of much interest to the political scientist, somewhat novel questions of national power were raised; and in neither was a certainly final solution offered. Questions of state power were again of decidedly subordinate significance and interest.
1 256 U. S.—, decided May 2.
2 “The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators.”
3 For cases involving similar legislation, see Ex parte Siebold, 100 U. S. 371; ex parte Clarke, 100 U. S. 399; ex parte Yarborough, 110 U. S. 651; re Coy, 127 U. S. 731; United States v. Mosley, 238 U.S. 383.
4 It may be argued perhaps, that the specific delegation of power made by Article i, section 4, precludes the assumption of a broader power inherent in the national government. But the answer is that, in form, Article i, section 4, is primarily a delegation of power, not to Congress, but to the states; and as both Chief Justice White and Justice Pitney point out, if Congress can not regulate the nomination and election of senators under Article i, section 4, then, of course, neither can the states. Nor, Justice Pitney continues, can the states claim such power to be among their reserved powers. “The election of senators and representatives in Congress is a federal function; whatever the states do in the matter they do under authority derived from the Constitution of the United States. The reservation contained in the Tenth Amendment cannot properly operate upon this subject in favor of the state governments; they could not reserve power over a matter that had no previous existence; hence, if the power was not delegated to the United States, it must be deemed to have been reserved to the people, and would require a constitutional amendment to bring it into play,—a deplorable result of strict construction.” Justice McReynolds, on the other hand, emphasizes the numerous points of contact of the national with the state government and the frequent dependence of the former upon the latter. But by way of comment, it should be pointed out that wherever this dependence exists it is specifically provided for by the Constitution. Chief Justice White seems to argue in one place that even if the act of 1910 was invalid when enacted, the defect had been cured by the subsequent adoption of the Seventeenth Amendment; but a careful examination of his language makes it probable that he was arguing only that the amendment should be regarded as interpretative of the original Constitution. The precise effect of the decision in the case at bar on the Corrupt Practices Act remains a matter of some doubt, especially in view of Justice McKenna's isolated position. It should be carefully noted, however, that the underlying principle of Justice McReynolds' opinion withholds from Congress not simply the right to govern nominations to the office of senator or representative in Congress, but all power concerning any of the preliminaries of the single definitive act of their election.
5 Art. iv, sec. 4: “The United States shall guarantee to every State in this Union a republican form of government,” etc.
6 255 U. S. 180. The case has some of the earmarks of a moot case, and Justice Holmes, in a dissenting opinion, in which Justice McReynolds concurred, contended that it was not one “arising under the Constitution or laws of the United States,” within the meaning of section 24 of the Judicial Code, under which the appeal was taken. Justice Day, speaking for the majority, answered with Marshall's definition of this phrase in Cohens v. Virginia, 6 Wheat. 264, 379: “A case ‥‥ may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends upon a construction of either.” Justice Brandeis took no part in the consideration of the case.
7 244 U. S. 416.
8 Mr. Hughes' brief in the case follows this general line of reasoning. As a matter of fact, the recent extension of life granted to the War Finance Corporation, for the purpose of making agricultural loans, can rest on no other foundation. That Congress is not confined in making appropriations to “cases falling within the specific powers enumerated in the Constitution” was recognized by Story (Commentaries, sec. 991). The expansion of the field within which congressional appropriations occur is sketched by West, H. L., in his Federal Power, Its Growth and Necessity, pp. 97–113.Google Scholar
9 Another case involving Congress' fiscal powers was that of Baender v. Barnett, 255 U. S. 224, in which it was argued for plaintiff in error that Article i, section 8, clause 6 of the Constitution, authorizing Congress “to provide for the punishment of counterfeiting the securities and current coin of the United States” was a limitation as well as a grant of power. The argument was easily disposed of by the case of United States v. Marigold, 9 How. 560.
10 255 U. S. 509.
11 See Straton's Independence v. Howbert, 231 U. S.; Hays v. Ganley Mountain Coal Co., 247 U. S. 189; United States v. Cleveland, C. C. and St. L. R. Co. 247 U. S. 195.
12 252 U. S. 189, 207. For a review of Eisner v. Macomber, see this Review for November, 1920 (Vol. 14, pp. 635–41).
13 For, as was just said, sale does not convert “capital” into “income.” The same question also arises, from another angle, if the income is the reward of labor. Can the Sixteenth Amendment be really considered as requiring that “income” be “dissevered” from the labor that produced it; and if so, in what sense?
14 See the Review, Vol. 14, p. 640, note.
15 255 U. S. 489; see also Goodrich v. Edwards, ibid., p. 527.
16 256 U. S.—, decided May 16.
17 “All duties, imposts, and excises shall be uniform throughout the United States.”
18 The court, therefore, assumes that the excess profits tax is an impost or excise, that is, an indirect tax; and this probably involves a similar assumption as to income taxes, since the excess profits tax is, in form certainly, an income tax. Apparently, therefore, the court still adheres to Brushaber v. Union P. R. Co., 240 U. S. 1, notwithstanding some implications to the contrary in Justice Pitney's opinion in Eisner v. Macomber.
19 256 U. S.—, decided May 16.
20 178 U. S. 41.
21 United States v. Woodward, 256 U. S.—, decided June 6.
22 255 U. S. 407.
23 The court does speak of “its [Congress’] practically plenary power over the mails,” but the cases which it cites in this connection by no means establish an arbitrary authority in this field: Ex parte Jackson, 96 U. S. 727; Public Clearing House v. Coyne, 194 U. S. 497; Lewis Publishing Co. v. Morgan, 229 U. S. 288.
24 256 U. S.—, decided April 18.
25 256 U. S.—, decided April 18.
26 Citing Wilson v. New, 243 U. S. 332; and Ft. Smith and W. R. Co. v. Mills, 253 U.S. 206.
27 Citing Boyd v. United States, 116 U. S. 616.
28 German Alliance Ins. Co. v. Lewis, 233 U. S. 389.
29 4 Wall. 2.
30 This seems to be an assumption underlying the decision in Wilson v. New, 243 U. S. 332.
31 254 U. S. 281.
32 “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
33 6 Wall. 35.
34 185 U. S. 125, and 206 U. S. 46. See also Georgia v. Tenn. Copper Co., 206 U. S. 230.
35 135 U. S. 1, 69.
36 16 Wall. 36.
37 The words of the Chief Justice are: “Crandall v. Nevada ‥‥ so much relied upon in the argument, is inapplicable, not only because it involved the validity of state action, but because the state statute considered in that case was held to directly burden the performance by the United States of its governmental functions and also to limit rights of the citizens growing out of such functions; and hence it also follows that the observation made in Twining v. New Jersey, 211 U. S. 78, 97, to the effect that it had been held in the Crandall Case that the privilege of passing from state to state is an attribute of national citizenship, may here be put out of view as inapposite.” He then appropriately adds: “With the object of confining our decision to the case before us, we say that nothing we have stated must be considered as implying a want of power in the United States to restrain acts which, although involving ingress or egress into or from a state, have for their direct and necessary effect an interference with the performance of duties which it is incumbent upon the United States to discharge.”
38 In addition to the cases cited above, see Paul v. Virginia, 8 Wall. 168; Ward v. Maryland, 12 Wall. 418; United States v. Cruikshank, 92 U. S. 542; United States v. Harris, 106 U. S. 629; and the Civil Rights Cases, 109 U. S. 3.
39 256 U. S.—, decided May 16.
40 For the present writer's review of Hawke v. Smith, 253 U. S. 221, and Rhode Island v. Palmer, ibid., 350, in which important questions as to the validity and construction of the Eighteenth Amendment were dealt with, see the Review for November, 1920 (Vol. 14, pp. 648–54). It should be added that the report of the latter case, as it appears in the bound volume, contains a dissenting opinion by Justice Clarke which was not available when the review cited was prepared. Justice Clarke accepts the first seven and the tenth paragraph of the announced “Conclusions” of the court, but demurs to the eighth, ninth, and eleventh, that, taken together, they, “in effect, declare the Volstead Act ‥‥ to be supreme law of the land,—paramount to any state law with which it may conflict.” His own view of the word “concurrent” of the amendment is that it means “joint and equal authority,” the view also taken by Justice McKenna, it will be recalled, in his dissenting opinion. Furthermore, Justice Clarke holds that Congress derives no authority from the second section of the amendment to treat as intoxicating liquor which is “expressly admitted” by the court “not tobe intoxicating.” In this respect its power has not the scope either of the war powers of the national government or of the police powers of the states.
41 256 U. S.—, decided June 1.
42 Citing Beers v. Arkansas, 20 How. 527; Hans v. Louisiana, 134 U. S. 1; Fitts v. McGhee, 172 U. S. 516; Palmer v. Ohio, 248 U. 8. 32; Dubine v. New Jersey, 251 U. S. 311.
43 Ibid. The immunity extended by the Eleventh Amendment “even in the case of municipal corporations” to “property and revenue necessary for the exercise” of the powers of government is regarded by Justice Pitney as analogous, citing Klein v. New Orleans, 99 U. S. 149.
He also suggests that the immunity from jurisdiction of public vessels, which is recognized by international law, might furnish a principle applicable to the case at bar; but he refrains from deciding the point. See The Exchange v. McFadden, 7 Cranch 116, and The Parlement Belge, L. R. 5 Probate Div. 197.
44 256 U. S.—, decided May 2.
45 See the cases cited in note 34, supra. On the question of what is a case “arising under this Constitution,” etc. (Article i, section 2, clause 1), see note 6, supra; also American Bank and Trust Co. 2. Federal Reserve Bank of Atlanta, 256 U. S.—, decided May 16.
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