Citizen or subject?

by Francis X. Hennessy

The Court will never be called upon to exercise a higher or graver trust than to answer the question “Citizen or Subject?”, when the real challenge is made to the new attempted constitution of government of men entirely by government. The Court is not unaware that the whole American people established their Constitution for the one purpose of protecting individual liberty.

The simple, classical, precise, yet comprehensive language in which it is couched, leaves, at most, but very little latitude for construction; and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it, in the best manner to effect the purposes intended. The great and paramount purpose was to unite this mass of wealth and power, for the protection of the humblest individual; his rights, civil and political, his interests and prosperity, are the sole end; the rest are nothing but the means. (Justice Johnson, Gibbons v. Ogden, 9 Wheat. 1, at p. 223.)

Nor will anyone familiar with the unbroken tradition of the Supreme Court listen, with aught but mingled incredulity and indignation, to the suggestion that the Court itself has not always understood that it is itself but a part of the limited government of the one American people, created by that people as one means to that sole end.

“It is emphatically the province and duty of the Judiciary Department to say what the law is.”

This is the clear statement of Marshall in Marbury v. Madison, 1 Cranch. 137, declaring unconstitutional a section of an act of Congress, which had been passed at the first session in 1789. The entire Bench and Bar of America, including the Supreme Court, for fourteen years, had practiced on the assumption that the section was constitutional. Yet in 1803, the Supreme Court declared it to be unconstitutional. Nothing could more clearly establish the knowledge of the Supreme Court that no continued thought (even by the Court itself), that any command of legislatures is valid, will ever blind the Court to its bounden duty to announce the fact that the command was made without authority from the people, when that fact is once made clear to the Court.

Exactly the same attitude was taken by the Court in relation to an income tax and a federal limitation on a national power given to impose direct taxation.

When that federal limitation was imposed it was aimed only at taxation on land and at what were then known as “poll” or “capitation” taxes. In the days of the “conventions” where we have sat, all other kinds of taxation were deemed to be indirect taxation.

In the very early days of the Supreme Court, this knowledge of the “convention” days was echoed in decisions which, on that ground, held that certain taxes, which today might be regarded as direct taxation, were not within the federal limitation as to apportionment of direct taxes among the states. Among those taxes, those imposed without apportionment, were a tax on carriages and receipts of insurance companies and on the inheritance of real estate. Even as late as the days of the Civil War, when a tax was imposed upon incomes and without apportionment among states, the Supreme Court held that such tax was not a direct tax within the meaning of “direct tax” to those who imposed the federal limitation.

Nevertheless, when the income tax law of 1894 had been enacted, its opponents again carried to the Supreme Court the claim that it violated the federal limitation on the power of direct taxation, because it did not apportion the tax among the states. And the Supreme Court, by a divided vote and on the ground that a tax on the income from land was a tax on the land itself and consequently a direct tax, held the Income Tax Law of 1894 to be void. It was by reason of this decision that the Sixteenth Amendment was proposed and adopted, making the federal change in the Constitution that lifted the federal limitation from the national power of direct taxation insofar as a tax on incomes was concerned.

In these decisions, as in the many others which have followed the same clear American concept of duty and power, the Supreme Court has always known and followed the reason stated by Hamilton for its existence as part of the limited government of the one American people.