[Footnote 3: Revenue Act of 1921, Title VIII, subdivisions 2 and 3.]
[Footnote 4: Smith v. Kansas City Title Co., 255 U.S., 180.]
It would be an insult to intelligence to claim that legislation such as this, wearing the form of revenue measure or regulation of commerce but in reality enacted with a different motive, does not involve an enormous extension of the national power beyond what the makers of the Constitution supposed they were conferring or intended to confer. What, then, of the declaration by the Supreme Court with which we began, that "to determine the extent of the grants of power we must place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of these grants." The answer must be that the Court itself has not always adhered strictly to this test. The Court has taken the position that when power exists under the Constitution to legislate upon a given subject—say interstate commerce or taxation—it is not for the judiciary to seek to correct abuses by Congress of that power, or to question Congressional motives. As said in the decision sustaining the constitutionality of the oleomargarine law:[1]
The judiciary is without authority to avoid an act of Congress lawfully exerting the taxing power, even in a case where to the judicial mind it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress, nor can the judiciary inquire into the motive or purpose of Congress in adopting a statute levying an excise tax within its constitutional power.
[Footnote 1: McCray v. United States, 195 U.S., 27.]
The Court, however, has had great difficulty with these cases and developed sharp differences of opinion. For example, the case upholding the anti-lottery statute as a valid exercise of the power to regulate commerce[1] was twice ordered for reargument and finally decided by a bare majority of 5 to 4. The Child Labor Law of 1916 was declared unconstitutional[2] and the Narcotic Drug Act was sustained[3] by a similar vote, 5 to 4. In the Narcotic Drug case the four dissenting justices, speaking through Chief Justice White, characterized portions of the statute as "beyond the constitutional power of Congress to enact … a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the states." In the Lottery case the dissenting opinion of the four, written by Chief Justice Fuller, concludes:
I regard this decision as inconsistent with the views of the framers of the Constitution, and of Marshall, its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions, the form may survive the substance of the faith.
[Footnote 1: Champion v. Ames, 188 U.S., 321.]
[Footnote 2: Hammer v. Dagenhart, 247 U.S., 251.]
[Footnote 3: United States v. Doremus, 249 U.S., 86.]