Magna Carta, and Other Addresses

by William D. Guthrie

And the same conclusions have been reached by a number of other distinguished French scholars and statesmen, among whom may be cited Thiers, Beauregard and Stourm.

The right of the states to levy progressive and unequal taxes on inheritances and testamentary dispositions is frequently sought to be upheld upon the theory that the power of our legislatures over successions to the property of decedents is unlimited, that the right to succeed is a mere statutory privilege, and that our lawmakers may arbitrarily grant or withhold that privilege at their will and discretion. It is, however, far from established that any such arbitrary and unrestrained power is vested in our state legislatures as that of denying wholly the right of inheritance or of testamentary disposition, or of discriminating in the regulation or grant of the privilege. The power to regulate the exercise of any right does not necessarily imply the power to deny it altogether. All rights of property as well as of personal liberty are subject to reasonable regulation, but this does not involve the power absolutely or arbitrarily to destroy such rights. The right of inheritance by children was not originally the creation of statute law at all, although the contrary is often assumed. It was a customary right long before the Conquest and prior to any statute of which we have record. It is treated by legal historians as "our common law of inheritance." In the latest authoritative history of the English law, that by Pollock and Maitland, the authors say that "in calling to our aid a law of intestate succession, we are not invoking a modern force," and that "the time when no such law existed is in strictest sense a prehistoric time." We find that it was a right already established in every one of the thirteen original states at the time the national government was founded; that it has always existed in civilized countries, so far as we have any knowledge; that it was recognized in the Twelve Tables as a right among the Romans; that it was a right long before among the Egyptians, and that it pervades the Mosaic law. A distinguished writer declares it to be the general direction of Providence itself. And Chancellor Kent said that "nature and policy have equally concurred to introduce and maintain this primary rule of inheritance in the laws and usage of all civilized nations."

The power of testamentary disposition undoubtedly developed as a limitation upon the right of inheritance and in order to prevent escheat for want of heirs. But however originating or evidenced—whether in old customs or in the practice of post-obit gifts—the right has been recognized from time immemorial. As Blackstone said in his "Commentaries," "in England this power of bequeathing is coeval with the first rudiments of the law, for we have no traces or memorials of any time when it did not exist."

Whatever may be the general language to be found in some judicial decisions, and whatever may be the extreme power of our state legislatures in the abstract, it is hardly conceivable that any state would attempt to escheat or confiscate all the property of decedents to the exclusion of children and near relatives, or that it would wholly deny the right of testamentary disposition. At any rate, if escheat or confiscation were ever decreed, it would have to be by laws applying equally to all decedents, and not merely to a selected class. The guaranties of the fourteenth amendment would prevent any discrimination.

But, however unlimited the power of the states may be in this regard, there can certainly be no doubt that it was not the intention of the framers of the Constitution of the United States to delegate to Congress the power to regulate successions to the estates of decedents or the privilege of testamentary disposition or inheritance. No one has yet seriously claimed that any such authority is within the legitimate sphere of the national government as contemplated by its founders. The power of regulating successions to the property of decedents was reserved to the states, and the courts would undoubtedly hold that any direct attempt on the part of Congress to regulate successions as such, or the ownership or transfer of property, was in excess of its powers. In dealing with successions, therefore, Congress can only exercise the power of taxation.

Yet it is urged that, as Congress has the power to tax successions, it may under the guise of exercising that power regulate inheritances and thereby break up large fortunes and force a redistribution of wealth. In other words, the argument is that Congress may, under the cover or pretense of a tax law, accomplish indirectly an object which, for want of power, it could not accomplish directly, although the accomplishment of this object would constitute a deliberate encroachment upon the reserved rights of the states.

There is great danger in this view, and it opens the door to abuse by Congress of the power of taxation. If a federal statute purports on its face to be a tax measure, and in fact to some extent operates to that end, the courts cannot ordinarily set it aside, even though the motive for its enactment be to accomplish an object not entrusted to the national government. The jurisdiction of the courts is limited. Legislation which seeks to effect illegitimate ends cannot always be nullified. The power of Congress to levy a graduated inheritance tax as a revenue measure would be practically unlimited unless, in the particular instance, the law were so extravagant, and its unconstitutional object so plain, as to establish beyond doubt an unauthorized purpose. It is not within the province of the judicial power to determine whether a given tax which raises revenue is reasonable or unreasonable, or to inquire into the motives of Congress in enacting the law. The courts might not, therefore, be able to set aside an inheritance tax law passed by Congress even if it absorbed fifty per cent. or more of successions, although it might be quite apparent that the real object of the law was to invade the province of the states and to regulate inheritances in clear violation of the spirit of the Constitution.

Nothing could be better calculated ultimately to undermine our whole system of constitutional government than the idea that the courts alone are the guardians of the Constitution and that Congress may rightfully enact any statute which the courts cannot properly nullify. The truth is that the duty of preserving and defending the Constitution in all its integrity is vested in Congress and the President far more than in the courts, and that if Congress and the President do not observe the restraints and limitations imposed by the Constitution, Congress may pass many statutes which are unconstitutional in substance but which the courts cannot set aside. It is often urged that all questions of constitutionality should be left to the courts and not be passed upon by Congress or the President. The true doctrine, however, is that Congress should not enact and the President should not approve any statute which they, as the agents and representatives of the people, are not satisfied seeks to accomplish a legitimate end within the scope of some power delegated to Congress and not reserved to the states or to the people. They should first determine, as their oath of office requires, whether, according to their best judgment, the act is or is not constitutional. It was the distinct intention of the framers of the Constitution, and they so provided in express words, that every member of Congress, every senator and every representative, should be bound by oath or affirmation to support the Constitution, and that the President, especially, should be charged with the duty of preserving, protecting and defending it to the best of his ability. This duty extends not only to the letter but to the spirit of the Constitution. It will be a lamentable exhibition of a lack of what may well be termed constitutional morality if, in the debates on the pending measures, we shall again hear the suggestion that objects concededly outside the scope of any power delegated to the national government may nevertheless be accomplished indirectly by means of a federal inheritance tax, in violation of the reserved rights of the state governments.

If, in framing an inheritance tax law, Congress will bear in mind that the regulation of successions to the property of decedents is a matter solely within the jurisdiction of the states and ought not to be usurped by the federal government, the object of raising revenue alone may lead to fair and reasonable taxes levied impartially upon all who should be called upon to pay for the support and maintenance of the common government whose protection they enjoy. It would then, perhaps, be better appreciated that the states have important and extensive governmental functions to perform; that they need inheritance taxes for the support of their governments, schools, charities, police and public improvements, and that any heavy federal succession taxes would embarrass and cripple them. It is, of course, one thing to resort to a federal inheritance tax as a temporary war measure, when patriotism inspires ready acquiescence and willing sacrifice, and quite a different thing to establish such a tax as a permanent method of raising national revenue in times of peace and prosperity when the effect may be to withdraw that source of revenue from the states.