Edward Douglass White

“ I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every member of every department of the government of the United States to support and defend the Constitution. ”

“ The plain intention of the law was to protect the liberty of contract and the freedom of trade. Will this intention not be frustrated by a construction which, if it does not destroy, at least gravely impairs, both the liberty of the individual to contract and the freedom of trade? If the rule of reason no longer determines the right of the individual to contract, or secures the validity of contracts upon which trade depends and results, what becomes of the liberty of the citizen or of the freedom of trade? ”

“ If to put a burden of taxation on the right to take real estate by inheritance reaches realty only by indirection, how can it be said that a tax on the income, the result of all sources of revenue, including rentals, after deducting losses and expenses, which thus reaches the rentals indirectly, and the real estate indirectly through the rentals, is a direct tax on the real estate itself? ”

“ And it is difficult to understand upon what ground of reason the preservation of the rights of all the states can be predicated upon the assumption that any one state may destroy the rights of any other without any power to redress or cure the resulting grievance. Nor further can it be readily understood why it is assumed that the preservation and perpetuation of the Constitution depend upon the absence of all power to preserve and give effect to the great guaranties which safeguard the authority and preserve the rights of all the states. ”

“ Thus, the price of all property, the result of all production, the sum of all wages, would be controlled irrevocably by a law levying taxes, if such a law forbade a shifting of the burden of the tax and avoided all acts which brought about that result. It cannot be doubted that to adopt, by implication, the view pressed upon us, would be to virtually destroy all freedom of contract, and in its final analyses would deny the existence of all rights of property. And this becomes more expecially demonstrable when the nature of a stamp tax is taken into consideration. ”

“ I can conceive of no principle of constitutional law which enables us to say that the commerce clause authorizes Congress to fix upon the carrier a liability for an insufficient brake but not for a defective rail, for the absence of automatic couplers, but not for the negligent order which brings trains into collision, for an insecure grab iron, but not for a heedless switchman. If Congress has the right to control the liability in any way it may control it in every way, subject, as all powers are subject, to the express prohibitions of the Constitution. ”

“ Being unable to assent to the principle that a Federal immunity arises when a state court, in determining a question not involving the Constitution or laws of the United States nor the validity of an authority exercised under the United States, reaches a conclusion upon a question of general law different from that announced in prior cases by this court, and denying our authority to compel a state court to disregard its own views upon a question of general law, I am constrained to dissent from the opinion and judgment. ”

“ The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. ”

“ We cannot adopt a theory of construction which substantially asserts that the half is equal to the whole. To enforce, then, against the money given by congress to the owner, the rights of the mortgage creditor, on the theory that it represents the entire value of the property, would be indulging in an untrue hypothesis to justify, not only a repudiation of the express words of the law, but also a refusal to execute its manifest intent. Doubtless, both the rights of the owner and those of the mortgage creditor were operated on by the tax sale. ”

“ Taxation is eminently practical, and is, in fact, brought to every man's door, and for the purpose of deciding upon its validity a tax should be regarded in its actual, practical results, rather than with reference to those theoretical or abstract ideas whose correctness is the subject of dispute and contradiction among those who are experts in the science of political economy.'
Concluding, then that the tax under consideration is not direct within the meaning of the Constitution, but, on the contrary, is a duty or excise, we are brought to consider the question of uniformity. ”

“ Justice Field, said: 'Issuing a policy of insurance is not a transaction of commerce. The policies are simply contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter, offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. ”

“ If a court of equity would not allow an individual to take such a position, my conception is that a nation should not be allowed here to avail itself of an attitude so contrary to good faith and so violative of the elementary principles of justice and equity, and, especially, where the statute on which this controversy is based imposes upon the court the duty of administering the rights of the parties according to the principles of equity. ”

“ The exception to the privilege is that it shall not extend to 'treason, felony, or breach of the peace.' These words are the same as those in which the exception to the privilege of Parliament is usually expressed at the common law, and were doubtless borrowed from that source. Now, as all crimes are offenses against the peace, the phrase 'breach of the peace' would seem to extend to all indictable offenses, as well those which are in fact attended with force and violence, as those which are only constructive breaches of the peace of the government, inasmuch as they violate its good order. ”

“ To say that a person who has manufactured machines under a patented monopoly can acquire no good will by the excellence of his work, or the development of his business, during the patent, would be to seriously ignore rights of private property, and would be against public policy, since it would deprive the one enjoying the patent of all incentive to make a machine of a good quality, because at its termination all the reputation or good will resulting from meritorious work would be subject to appropriation by every one. ”

“ To destroy the fixed interpretation of the constitution, by which the rule of apportionment according to population is confined to direct taxes on real estate so as to make that rule include indirect taxes on real estate and taxes, whether direct or indirect, on invested personal property, stocks, bonds, etc., reads into the constitution the most flagrantly unjust, unequal, and wrongful system of taxation known to any civilized government. ”

“ The first question which arises is, was the tax levied on the franchise of the corporation? In solving this question it will serve only to confuse and delude the reason if the method which has been pursued in argument is now followed; that is, of calling the levy a franchise tax in one breath, and then in the next dropping that designation, and not only denominating the tax, but treating it as solely a tax on intangible property. If the words 'intangible roperty' be synonymous with 'franchise,' there is no reason for shifting the name by which the object taxed is designated. ”

“ If the court had power to do this by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of law? If the power to violate the fundamental constitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to proceedings in contempt, why will they not also apply to proceedings against the liberty of the subject? ”

“ When the various treaties by which foreign territory has been acquired are considered in the light of the circumstances which surrounded them, it becomes to my mind clearly established that the treaty-making power was always deemed to be devoid of authority to incorporate territory into the United States without the assent, express or implied, of Congress, and that no question to the contrary has ever been even mooted. ”

“ The lengthening list of casualties to employees and passengers on our railroads has arrested the public attention and created public alarm. Ought Congress alone to be indifferent? Or have we so weak a system of government that the only part of it which is clothed with direct authority over the commerce in which the casualties happen is powerless? What does the 'direct supervision, control, and management' amount to if it does not include the power to pass any laws really calculated to lessen the great dangers of public travel? ”

“ This court, speaking by Mr. Justice Bradley, said: 'What is a judgment but a security of record showing a debt due from one person to another? It is as much a mere security as a treasury note, or a bond of the United States. If A brings an action against B, trover or otherwise, for the withholding of such securities, it is not, therefore, a case arising under the laws of the United States, although the whole value of the securities depends upon the fact of their being the obligations of the United States. ”

“ Obviously if it be conceded that no power obtains to enforce as against a state its duty under the Constitution in one respect and to prevent it from doing wrong to another state, it would follow that the same principle would have to be applied to wrongs done by other states, and thus the government under the Constitution would be not an indissoluble union of indestructible states but a government composed of states each having the potency with impunity to wrong or degrade another a result which would inevitably lead to a destruction of the union between them. ”

“ The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state. ”

“ In other words, from reasons of public honor and public faith, he deemed it his duty to protect the rights of the owners of water lots. This obligation of public honor and public faith thus, it seems to me, expressly declared by Washington, rests, in my judgment, upon the nation to-day, and should be regarded. As I see the facts, it ill becomes the nation now, when the rights have been sanctified by years of possession, to treat them as if they had never existed, and thus disregard the obligations of the public trust which Washington sought so sedulously to fulfill. ”

“ The grave consequences which it is asserted must arise in the future if the right to levy a progressive tax be recognized involves in its ultimate aspect the mere assertion that free and representative government is a failure, and that the grossest abuses of power are foreshadowed unless the courts usurp a purely legislative function. ”

“ Thus, after insisting that the word 'every' is all-embracing, it is said from the necessity of things it will not be held to apply to covenants in restraint of trade which are collateral to a sale of property, because not 'supposed' to be within the letter or spirit of the statute. But how, I submit, can it be held that the words 'every contract in restraint of trade' embrace all such contracts, and yet at the same time it be said that certain contracts of that nature are not included? ”

“ Is it a tax on land, and is it direct thereon, or so immediately on the land as to be equivalent to a direct levy upon it? To say that any burden on land, even though indirect, must be apportioned, is not only to incorporate a new provision in the constitution, but is also to obliterate all the decisions to which I have referred, by construing them as holding that, although the constitution forbids only a direct tax on land without apportionment, it must be so interpreted as to bring an indirect tax on land within its inhibition. ”

“ It is, I submit, greatly to be deplored that after more than 100 years of our national existence, after the government has withstood the strain of foreign wars and the dread ordeal of civil strife, and its people have become united and powerful, this court should consider itself compelled to go back to a long repudiated and rejected theory of the constitution, by which the government is deprived of an inherent attribute of its being,-a necessary power of taxation. ”

“ The fallacy lies in admitting the right to exercise the power, if only it is exerted by the military arm of the government, but denying it wherever the civil power comes in to regulate and make the conditions more in accord with the spirit of our free institutions. Why it can be thought, although under the Constitution the military arm of the government is in effect the creature of Congress, that such arm may exercise a power without violating the Constitution, and yet Congress-the creator-may not regulate, I fail to comprehend. ”

“ Conceding that the conception upon which the Constitution proceeds is that no territory, as a general rule, should be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is wholly a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or even real dangers. The Constitution may not be saved by destroying its fundamental limitations. ”

“ Even the then members of the Congress who had not been delegates to the convention which framed the Constitution must have had a keen appreciation of the influences which had shaped the Constitution and the restrictions which it embodied, since all questions which related to the Constitution and its adoption must have been, at that early date, vividly impressed on their minds. It would, under these conditions, be indeed surprising if a tax should have been levied without question upon objects deemed to be beyond the grasp of Congress because exclusively within state authority. ”

“ The fundamental fallacy of this argument is that it misunderstands the nature of the Constitution, undervalues its usefulness, and forgets that its unchanging provisions are adaptable to the infinite variety of the changing conditions of our national life. Surely, there is no statute of limitations which bars Congress from the exercise of any of its granted powers, nor any authority, save that of the people whom it represents, which may, with propriety, challenge the wisdom of its choice of the time when remedies shall first be applied to what it deems wrong. ”

“ A shade or two more in the degree of exigency is all that will be requisite, and of that degree we shall ourselves be the judges. However, may it not be hoped that these questions are forever laid to rest by the 12th Amendment once made a part of the Constitution, declaring expressly that 'the powers not delegated to the United States by the Constitution are reserved to the states respectively?' And if the general government has no power to alienate the territory of a state, it is too irresistible an argument to deny ourselves the use of it on the present occasion.' Ibid. ”

“ There is no doubt that the rule exists, there is no doubt that it is wise, and promotes the mutual respect between the different branches of the government which is so essential to the welfare of all, and that it requires us, if it is within our power, to give to the words of the statute before us a meaning which will confine its provisions to subjects within the control of Congress. ”